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Raymond Arthur Abbott, A Minor, By His Guardian Ad Litem, Frances v. Fred G. Burke

May 24, 2011

RAYMOND ARTHUR ABBOTT, A MINOR, BY HIS GUARDIAN AD LITEM, FRANCES ABBOTT; ARLENE FIGUEROA, FRANCES FIGUEROA, HECTOR FIGUEROA, ORLANDO FIGUEROA AND VIVIAN FIGUEROA, MINORS, BY THEIR GUARDIAN AD LITEM, BLANCA FIGUEROA; MICHAEL HADLEY, A MINOR, BY HIS GUARDIAN AD LITEM, LOLA MOORE; HENRY STEVENS, JR., A MINOR, BY HIS GUARDIAN AD LITEM, HENRY STEVENS, SR.; CAROLINE JAMES AND JERMAINE JAMES, MINORS, BY THEIR GUARDIAN AD LITEM, MATTIE JAMES; DORIAN WAITERS AND KHUDAYJA WAITERS, MINORS, BY THEIR GUARDIAN AD LITEM, LYNN WAITERS; CHRISTINA KNOWLES, DANIEL KNOWLES AND GUY KNOWLES, JR., MINORS, BY THEIR GUARDIAN AD LITEM, GUY KNOWLES, SR.; LIANA DIAZ, A MINOR, BY HER GUARDIAN AD LITEM, LUCILA DIAZ; AISHA HARGROVE AND ZAKIA HARGROVE, MINORS, BY THEIR GUARDIAN AD LITEM, PATRICIA WATSON; AND LAMAR STEPHENS AND LESLIE STEPHENS, MINORS, BY THEIR GUARDIAN AD LITEM, EDDIE STEPHENS, PLAINTIFFS-MOVANTS,
v.
FRED G. BURKE, COMMISSIONER OF EDUCATION; EDWARD G. HOFGESANG, NEW JERSEY DIRECTOR OF BUDGET AND
ACCOUNTING; CLIFFORD A. GOLDMAN, NEW JERSEY STATE TREASURER; AND NEW JERSEY STATE BOARD OF EDUCATION,, DEFENDANTS-RESPONDENTS.



The opinion of the court was delivered by: Justice LaVECCHIA

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Abbott v. Burke

(M-1293-09)

Argued January 5, 2011

Reargued April 20, 2011

Decided May 24, 2011

LaVECCHIA, J., writing for the Court.

This opinion addresses plaintiffs' motion under Rule 1:10-3 in aid of litigants' rights based on the State's failure to fully fund the School Funding Reform Act of 2008 (SFRA), N.J.S.A. 18A:7F-43 to -63.

The schoolchildren who comprise the plaintiff class have been denominated victims of a violation of constitutional magnitude for more than twenty years. Remedial orders were imposed to provide the education funding and services required to ameliorate the class's constitutional deprivation. The State has for decades recognized the special status of that plaintiff class of pupils, and its compliance with this Court's remedial orders demonstrates its recognition that plaintiffs' constitutionally based remedies have imbued them with status akin to that given to wards of the State.

It was against that backdrop that the State applied to this Court two years ago, asking to be relieved of the orders that required parity funding and supplemental funding for children in the so-called "Abbott districts" in exchange for providing funding to those districts in accordance with SFRA. The State persuaded this Court to give it the benefit of the doubt that SFRA would work as promised and would provide adequate resources for the provision of educational services sufficient to enable pupils to master the Core Curriculum Content Standards (CCCS). Accordingly, the Court granted the State relief from those remedial orders that bound it to the parity remedy for the pupils from the Abbott districts, and authorized the State to implement in Abbott districts SFRA's level of funding. Abbott v. Burke, 199 N.J. 140 (2009) (Abbott XX).

The exchange of remedial orders correcting constitutional deprivations for the State's alternative -- SFRA funding -- did not alter the constitutional underpinnings of the replacement relief. The Court's grant of relief in Abbott XX came with the express caveats of required full funding and the mandatory retooling of SFRA's formulaic parts at designated mileposts in the formula's implementation. When the Court granted the State the relief it requested, it was not asked to allow, and did not authorize, the State to replace the parity remedy with some version of SFRA or an underfunded version of the formula. In respect of the failure to provide full funding under SFRA's formula to Abbott districts, the State's action amounts to nothing less than a reneging on the representations it made when it was allowed to exchange SFRA funding for the parity remedy. Thus, the State has breached the very premise underlying the grant of relief it secured with Abbott XX.

In resisting the plaintiffs' present application, the State argues that the Court must defer to the Legislature because the legislative authority over appropriations is plenary pursuant to the Appropriations Clause of the Constitution. See N.J. Const. art. VIII, § 2, ¶ 2. Although it is true that past decisions of this Court have recognized the Legislature's authority to work a modification of other statutes through the adoption of an annual appropriations act, a different question is presented here. The State seeks, through the legislative power over appropriations, to diminish the Abbott districts' pupils' right to funding required for their receipt of a thorough and efficient education after representing to this Court that it would not do so in order to achieve a release from the parity remedy requirement. In such circumstances, the State may not use the appropriations power as a shield to its responsibilities.

HELD: The Appropriations Clause creates no bar to judicial enforcement under the circumstances presented here. The funding to the Abbott districts in FY 2012 must be calculated and provided in accordance with the School Funding Reform Act of 2008. Relief is limited to the plaintiff class of children from Abbott districts for whom the Court has a historical finding of constitutional violation and for whom the Court has had specific remedial orders in place through Abbott XX.

1. The background to the education funding remedy in place at the time of the State's application in Abbott XX begins with the 1990 decision in Abbott II, and shows the forbearance with which this Court awaited, for years, the State's development of a constitutionally sound method of funding for disadvantaged pupils before specific remedial orders had to be imposed. In the fall of 2008, the State made application to the Court proudly bearing the message that it had created a funding formula -- SFRA -- based on core curriculum content standards that addressed the needs of disadvantaged students, thereby achieving constitutional compliance. Solely for purposes of considering the State's application to alter the methodology for the provision of funding to the Abbott districts, the Court declared SFRA to be, presumptively, constitutionally adequate and valid to the extent that the record permitted its review. The relief granted to the State was conditioned on two express mandates: that SFRA be fully funded; and that there be a "look-back" and retooling of SFRA after its first three years of implementation. The Court's decision in Abbott XX was a good-faith demonstration of deference to the other political branches' authority, not an invitation to retreat from the hard-won progress that our State had made toward guaranteeing the children in Abbott districts the promise of educational opportunity. (pp. 14-28)

2. In the instant matter, after reviewing the parties' briefs on the motion and hearing argument, the Court remanded to a Special Master to consider "whether school funding through SFRA, at current levels, can provide for the constitutionally mandated thorough and efficient education for New Jersey school children." The remand order placed the burden on the State to demonstrate that the present level of school funding can provide thorough and efficient education as measured by the CCCS. The Special Master issued his opinion with recommendations to the Court on March 22, 2011. The Special Master concluded that the State failed to meet its burden to show that a thorough and efficient education can be provided, consistent with the CCCS, through the levels of SFRA funding provided in the FY 2011 Appropriations Act. (pp. 28-33)

3. A Rule 1:10-3 motion is an appropriate vehicle for a party who alleges a violation of a judgment. This Court has granted motions in aid of litigants' rights in prior Abbott decisions where the State failed to act consistent with its representations regarding the manner it claimed it would fulfill a mandate of this Court. The State's decision to underfund the SFRA formula for FY 2011 was an action that directly contravened the judgment in Abbott XX, which had authorized the State to substitute full SFRA funding for the parity remedy in Abbott districts. The State has breached the very premise underlying the grant of relief it secured with Abbott XX. Hence, the plaintiff class of Abbott school children has every right to relief in aid of litigants' rights based on the State's failure to fully fund SFRA in Abbott districts. (pp. 33-35)

4. The State claims that because the appropriation power is vested in the Legislature, N.J. Const. art. VIII, § II, ¶ 2, this Court should defer to the appropriations choices made by the Legislature. The case law cited by the State to support this position involves situations in which the suspension of other statutory enactments was at issue. It does not follow that the Appropriations Clause authority to modify or suspend statutes that raise some expectation of funding empowers the political branches to ignore judicial orders and decrees that specify a remedy to ameliorate a historical finding of constitutional violation. The Court holds that the Appropriations Clause creates no bar to judicial enforcement when, as here, 1) the shortfall in appropriations purports to operate to suspend not a statutory right, but rather a constitutional obligation, 2) which has been the subject of more than twenty court decisions or orders defining its reach and establishing judicial remedies for these plaintiffs for its breach, 3) where the harm being visited is not some minor infringement of the constitutional right but a real, substantial, and consequential blow to the achievement of a thorough and efficient system of education to the plaintiff pupils of the Abbott districts, and 4) where the formula the State has underfunded was one created by the State itself, and made applicable to the plaintiff pupils of Abbott districts, in lieu of prior judicial remedies, by this Court on application by the State based on specific representations that the statutory scheme of SFRA would be fully funded at least as to the Abbott pupils, and fully implemented as to those districts. (pp. 35-46)

5. Plaintiffs claim the right to demand full funding of SFRA for all districts in the State. The extent of the Court's jurisdiction in this matter starts and ends with the series of litigated proceedings that preceded this action. Those proceedings delineated the responsibility of the State to the representative plaintiff school children from Abbott districts. In Abbott XX, this Court found that SFRA was a constitutionally adequate means for the State to provide a thorough and efficient education for students in Abbott districts. In respect of the undisputed failure on the part of the State to fully fund the SFRA in FY 2011, the present disposition can extend no further than the parties involved in the earlier proceedings in these school funding cases, namely the plaintiff class of school children of the formerly designated "Abbott districts." (pp. 46-52)

6. The dissenters, without any historical or precedential support, attempt to place at issue the time-honored doctrine that majority rules. When this Court is constituted as a five-person Court, whether deciding a case or a motion, a vote of three persons has always been sufficient to determine the outcome of the matter. In the absence of a statute, rule, or constitutional provision on point, the default common-law principle governs in this case, as it has done in all other motion votes when the Court was acting on the basis of a mere quorum of five members. Here, the Court, acting with a five-member quorum, is taking its consistent approach with respect to the vote required for affirmative action on the pending motion in aid of litigants' rights under Rule 1:10-3 by acting on the basis of the affirmative votes of three members. This is a straightforward application of a universal common-law norm. (pp. 52-58)

The motion is GRANTED, and it is ordered that the funding to the Abbott districts in FY 2012 must be calculated and provided in accordance with the SFRA formula. Based on Office of Legislative Services figures, the best estimated cost of this remedy is $500 million.

JUSTICE ALBIN has filed a separate, CONCURRING opinion joining in Justice LaVecchia's remedy and analysis that majority rules in deciding a motion, but expressing the view that there was sufficient credible evidence in the record before the Special Master to affirm a finding that the underfunding of 205 school districts operating below their adequacy budgets, in violation of SFRA, deprived at-risk children of their right to a constitutionally adequate education, and therefore he would order funding at the levels required under SFRA for those 205 districts in the coming school year.

JUSTICE RIVERA-SOTO has filed a separate, DISSENTING opinion in which JUSTICE HOENS joins, expressing the view that, in the context of this motion in aid of litigants' rights, three votes to grant relief are insufficient because a minimum of four votes is required to grant a substantive motion and that, on jurisprudential grounds, relief such as what is ordered here should not be granted on a 3-to-2 vote.

JUSTICE HOENS has filed a separate, DISSENTING opinion, in which JUSTICE RIVERA-SOTO joins, expressing the view that plaintiffs' motion must be denied for three principal reasons: 1) the evidence in the record is insufficient to meet the high standard required for the extraordinary relief of an order in aid of litigant's rights; 2) there is insufficient support for the Special Master's findings that less than full funding of the SFRA formula prevented school districts from delivering a constitutionally adequate education; and 3) the relief demanded of this Court treads on the constitutional prerogatives of the Legislature and the Executive branch.

JUDGE STERN (temporarily assigned) joins in JUSTICE LaVECCHIA'S opinion, and JUSTICE ALBIN joins in the judgment. JUSTICE ALBIN also has filed a separate, concurring opinion. JUSTICE RIVERA-SOTO has filed a separate, dissenting opinion, in which JUSTICE HOENS joins. JUSTICE HOENS has filed a separate, dissenting opinion in which JUSTICE RIVERA-SOTO joins. CHIEF JUSTICE RABNER and JUSTICE LONG did not participate in the decision.

Argued January 5, 2011

Remanded January 13, 2011.

Special Master's Report

Filed -- March 22, 2011

Reargued April 20, 2011

On motion in aid of litigants' rights concerning the judgment of this Court reported at 199 N.J. 140 (2009).

JUSTICE LaVECCHIA delivered the opinion of the Court.

The schoolchildren who comprise the plaintiff class in the Abbott v. Burke litigation have been denominated victims of a violation of constitutional magnitude for more than twenty years.*fn1

Because of the severity of their constitutional deprivation, that class of pupils was determined to be deserving of special treatment from the State. Remedial orders were imposed to provide the education funding and services required to ameliorate the pupils' constitutional deprivation. The State has for decades recognized the special status of that plaintiff class of pupils,*fn2 and its compliance with this Court's remedial orders demonstrates the State's long recognition that plaintiffs' constitutionally based remedies have imbued them with status akin to that given to wards of the State. In sum, the Abbott plaintiffs have been the longstanding beneficiaries of specific judicial remedial orders, which were entered to correct proven constitutional deprivations that the State was unable to correct on its own, and which specifically directed the method by which the amount of funding to their school districts was to be calculated and provided by the State.

It was against that backdrop that the State applied to this Court two years ago, asking to be relieved of the orders that required parity funding and supplemental funding for children in the so-called "Abbott districts" (in combination, "the parity remedy") in exchange for providing funding to those districts in accordance with the School Funding Reform Act of 2008 (SFRA), L. 2007, c. 260 (N.J.S.A. 18A:7F-43 to -63). The State persuaded us to give it the benefit of the doubt that SFRA would work as promised and would provide adequate resources for the provision of educational services sufficient to enable pupils to master the Core Curriculum Content Standards (CCCS). Accordingly, we granted the State relief from those remedial orders that bound it to the parity remedy for the pupils from Abbott districts, and authorized the State to implement in Abbott districts SFRA's level of funding. Abbott v. Burke, 199 N.J. 140 (2009) (Abbott XX).

It is now undisputed that the State has failed to fully fund SFRA in Fiscal Year (FY) 2011. The record in this matter shows generally that the cuts to school aid funding, in districts of various needs, have been instructionally consequential and significant.

The exchange of remedial orders correcting constitutional deprivations for the State's alternative --- SFRA funding --- did not alter the constitutional underpinnings to the replacement relief. Our grant of relief in Abbott XX was clear and it was exacting. It came with the express caveats of required full funding, and a mandatory retooling of SFRA's formulaic parts at designated mileposts in the formula's implementation. When we granted the State the relief it requested, we were not asked to allow, and did not authorize, the State to replace the parity remedy with some version of SFRA or an underfunded version of the formula. In respect of the failure to provide full funding under SFRA's formula to Abbott districts, the State's action amounts to nothing less than a reneging on the representations it made when it was allowed to exchange SFRA funding for the parity remedy. Thus, the State has breached the very premise underlying the grant of relief it secured with Abbott XX.

Plaintiffs have sought relief under Rule 1:10-3.*fn3 They have just cause to seek vindication of litigants' rights. Like anyone else, the State is not free to walk away from judicial orders enforcing constitutional obligations.

In resisting the plaintiffs' present application, the State argues that we must defer to the Legislature because the legislative authority over appropriations is plenary pursuant to the Appropriations Clause of the Constitution. See N.J. Const. art. VIII, § 2, ¶ 2. Although it is true that past decisions of this Court have recognized the Legislature's authority to work a modification of other statutes through the adoption of an annual appropriations act,*fn4 a different question is presented here. The State seeks, through the legislative power over appropriations, to diminish the Abbott pupils' right to funding required for their receipt of a thorough and efficient education after representing to this Court that it would not do so in order to achieve a release from the parity remedy requirement. In such circumstances, the State may not use the appropriations power as a shield from its responsibilities.

We hold that the Appropriations Clause creates no bar to judicial enforcement when, as here, 1) the shortfall in appropriations purports to operate to suspend not a statutory right, but rather a constitutional obligation, 2) which has been the subject of more than twenty court decisions or orders defining its reach and establishing judicial remedies for these plaintiffs for its breach, 3) where the harm being visited is not some minor infringement of the constitutional right but a real, substantial, and consequential blow to the achievement of a thorough and efficient system of education to the plaintiff pupils of the Abbott districts, and 4) where the formula the State has underfunded was one created by the State itself, and made applicable to the plaintiff pupils of Abbott districts, in lieu of prior judicial remedies, by this Court on application by the State based on specific representations that the statutory scheme of SFRA would be fully funded at least as to the Abbott pupils, and fully implemented as to those districts. In those circumstances, the State, having procured judicial relief based on specific representations, will not be heard to argue that the Appropriations Clause power leaves the plaintiff children of the Abbott districts without an effective remedy.

Although we are sympathetic to the difficulties that the State's failure to abide by its statutory formula for education funding has caused to children in districts statewide, we are limited in our ability to order relief in this matter. We can grant relief in litigants' rights only to the plaintiff class of children from Abbott districts for whom we have a historical finding of constitutional violation and for whom we had specific remedial orders in place through Abbott XX. Accordingly, for the State's undisputed failure to adhere to the specific relief authorized in Abbott XX, our present disposition granting relief and ordering full funding of SFRA in FY 2012 can reach no broader than to the plaintiffs granted relief in the earlier proceedings in these school funding cases, namely the schoolchildren of the Abbott districts.

I.

We turn to address specifically the context of this present application before the Court. Based on the State's undisputed failure to fund school districts in FY 2011 in accordance with SFRA's formula, plaintiffs have returned to this Court seeking relief in aid of litigants' rights. The steps that preceded the imposition of the school aid reductions through the FY 2011 Appropriations Act were a subject of the parties' jointly stipulated facts, which presented preliminary information as a backdrop to this application.*fn5

On March 16, 2010, the Governor delivered the FY 2011 Budget Message. At that time, spending for the upcoming year was projected to increase 28.6% over FY 2010, and revenues were projected to fall. The state aid to school districts was projected to grow by $1.8 billion, or 16% of the total budget gap for the year. And, the FY 2010 budget had relied upon several types of non-recurring revenues that would not be available in FY 2011.

The Legislature passed an annual appropriations bill for FY 2011 on June 29, 2010, and the Governor signed the Appropriations Act into law the same day. L. 2010, c. 35. The Appropriations Act reduced spending from FY 2010 by $2.7 billion, or 8.3%, with cuts implemented across all departments of state government. Although the FY 2011 Appropriations Act increased school aid in the aggregate,*fn6 school aid for kindergarten through twelfth grade (K-12) programming was actually reduced from FY 2010 to FY 2011 by $1,081,558,312.*fn7

Critically, the FY 2011 Appropriations Act modified the K-12 school aid formula, and allotted $1.601 billion less to districts than SFRA would have if optimally funded.*fn8

The state aid reductions for FY 2011 resulted from a series of calculations and several modifications to the original SFRA formula.*fn9 First, the Appropriations Act altered three components of SFRA's formula: the Consumer Price Index (CPI); the State Aid Growth Limit; and allocation of Educational Adequacy Aid. Specifically, the FY 2011 Appropriations Act set the CPI to zero for all districts, although pursuant to the original SFRA formula, the CPI would have been 1.6%. See Appendix at 33. The State Aid Growth Limit was also set at zero for all districts, whereas SFRA's original formula set the limits at 10% for districts already spending above adequacy and 20% for those districts spending below adequacy. See N.J.S.A. 18A:7F-47(d).

A third factor, Educational Adequacy Aid, was held for all districts at the 2009-2010 level, despite its original purpose under the formula "to bring the Abbott districts meeting certain criteria, which were spending below adequacy, up to adequacy within three years of SFRA's implementation through a combination of increased local levy and additional State aid." Appendix at 34 (citing Abbott XX, supra, 199 N.J. at 229). An initial allocation figure was calculated for each district using the modified formula, and, as a result of the adjustments to SFRA's parameters, state aid was reduced by $520,276,732.

As a second step, the Appropriations Act calculated a reduction amount for each district equivalent to the lesser of either: (a) 4.994% of the district's adopted 2009-2010 general fund budget, or (b) the sum of its 2010-2011 initial allocation of state aid pursuant to the modified formula described above (the "4.994% reduction"). Next, the reduction amount derived from step two was subtracted from the modified SFRA formula figure calculated in step one.*fn10 Appendix at 34. The resulting figure was the state aid allocated to each district for FY 2011. Ibid. The decrease in state aid from the 4.994% reductions to the districts' general fund budgets amounted to an additional loss of $1.081 billion. Id. at 35.

The sum of both types of reductions, namely $1.601 billion, represents the total amount by which the original SFRA formula was underfunded for FY 2011. The resulting shortfall was spread across various SFRA aid categories, including Adjustment Aid, Transportation Aid, Security Aid, Equalization Aid, Special Education Categorical Aid, Educational Adequacy Aid, and Choice Aid.*fn11 In a statement issued by the Office of Legislative Services (OLS), the budget was described as one that "departs significantly from the funding provision of [SFRA]."

Prior to enactment of the Appropriations Act, plaintiffs wrote to the Attorney General requesting that the State either adjust aid levels to comply with SFRA, or move before this Court for relief from Abbott XX. When the Attorney General's response indicated that the State would not proceed with an application that was not believed to be necessary, plaintiffs filed the present motion in aid of litigants' rights, on June 8, 2010, alleging that the State's budget reduction violated this Court's judgment in Abbott XX.

II.

Two years ago when this Court issued its twentieth judgment or order in the course of this state's school funding controversy, our opinion reflected an acute awareness of the long duration of this litigation:

Today we are almost a decade into the twenty-first century, and nearly twenty years have passed since this Court found that the State's system of support for public education was inadequate as applied to pupils in poorer urban districts. Abbott v. Burke, 119 N.J. 287, 295 (1990) (Abbott II). Finding that more severely disadvantaged pupils require more resources for their education, the Court held that the State must develop a funding formula that would provide all children, including disadvantaged children in poorer urban districts, with an equal educational opportunity as measured by the Constitution's thorough and efficient clause. Id. at 374, 384-86. A later decision added that the funding needed to be coupled to a set of educational program standards. Abbott v. Burke, 136 N.J. 444 (1994) (Abbott III). [Abbott XX, supra, 199 N.J. at 144 (parallel citations omitted).]

But the Abbott XX application was different in kind. This time the State was directly applying to this Court seeking to reopen the matter. The State came proudly bearing the message that it "ha[d] heeded our call to create a funding formula based on curriculum content standards and to demonstrate that the formula addresses the needs of disadvantaged students everywhere, thereby achieving constitutional compliance." Id. at 145.

In January of 2008, the Legislature had enacted, and the Governor had signed, a new school funding formula: SFRA. The State claimed its formula satisfied constitutional requirements for at-risk children --- the children with the greatest challenges and needs in terms of educational resources --wherever such pupils attended school. According to the State, at-risk children were not restricted to Abbott districts. Demographic alterations among school districts had caused changes in the distribution of at-risk children, resulting in many more districts having significant populations of at-risk children to educate.

But, although the State already had implemented its "new" formula with the adoption of its annual appropriations act for FY 2009 (covering the 2008-09 school year), it did not provide funding to the Abbott districts in accordance with SFRA's funding formula because, as its application to this Court acknowledged, prior remedial orders issued in this litigation bound the State and controlled the provision of state aid to pupils in Abbott districts. It was clear that the State well understood the binding nature of the prior remedial orders. Nevertheless, to underscore the background of the matter, in addressing the State's application seeking approval to provide SFRA's funding to Abbott districts in lieu of following the extant remedial orders, we recounted the litigation history that had brought us to that crossroads. See Abbott v. Burke, 196 N.J. 544, 560-63 (2008) (Abbott XIX).

A.

The background to the education funding remedy in place at the time of the State's application, which was set forth in Abbott XIX, bears repeating for our present purposes. It begins with the 1990 decision in Abbott II, and shows the forbearance with which this Court awaited, for years, the State's development of a constitutionally sound method of funding for disadvantaged pupils before specific remedial orders had to be imposed:

In Abbott II, the State presented the Public School Education Act of 1975 (the Act) as a school funding formula that would satisfy the constitutional requirement of a thorough and efficient education. The Court reviewed the Act after it had been examined through the development of a full record. . . . [and] found the funding formula to be constitutionally inadequate. Importantly, the Court further found that "funding alone will not achieve the constitutional mandate" for the pupils in districts having high concentrations of poor children; that "without educational reform, . . . money may accomplish nothing; and that in these [poorer] districts substantial far-reaching change in education [was] absolutely essential to success."

The Court ordered the remedy of "certain funding" to be provided to the special needs districts, . . . . [and] used the successful I and J districts --- the most affluent suburban districts --- as a benchmark it could identify for success. As was later underscored in Abbott IV,*fn12 the Court in Abbott II, looked to those districts it deemed were likely to be providing a level of education that was consistent with the Constitution. The Court ordered that the funding must approximate the average net current expense budgets of the I and J districts . . . . Further, the [C]court ordered that the funding be adequate to provide for the special educational needs of students in poorer districts.

Four years later, in Abbott III, the Court considered the Quality Education Act (QEA), enacted by the Legislature in 1990 in response to Abbott II. . . . [However, that] new funding formula failed to implement key aspects of the Abbott II decision, which directed that there be certainty in the funding for the special needs districts, among other requirements.

In response to Abbott III's rebuff of the QEA funding approach, the State turned its attention to the creation of comprehensive content standards for a thorough and efficient education from which a standard of fiscal support could be built. Thereafter, the Legislature, working with the Executive Branch, enacted the Comprehensive Educational Improvement and Financing Act of 1996 (CEIFA).

In Abbott IV, the Court addressed the constitutionality of CEIFA, declaring upon examination of the statute's educational content provisions that, with the enactment of CEIFA, the Legislature had taken a major step in detailing the components and meaning of a constitutional education, an effort that "strongly warrant[ed] judicial deference." The Court ultimately concluded that the CCCS established in CEIFA provided a constitutionally acceptable definition of a thorough and efficient education.

That said, the Court was unable to approve the fiscal standards adopted in CEIFA to support the CCCS because the standards were based on costs in a hypothetical school district that supposedly served as a model for all school districts. The Court noted that the "model" did not account for the characteristics of special needs districts. Furthermore, the Court also found that those special needs were not adequately provided for through CEIFA's categorical aid for supplemental programs ---demonstrable effective program aid (DEPA) ---because DEPA funding also was not calculated based on a study of the special needs of the high concentrations of poor students attending Abbott districts. . . .

Faced with no viable alternative legislative or administrative solution to the funding dilemma, the Court ordered the parity remedy. The Court resorted to the I and J district average as an objective and reasonable indicator of resources needed to achieve the CCCS. The parity remedy was recognized, even at the time, as an "interim" remedy, albeit the Court's "chosen interim remedy." The door was left open, however, for an alternative funding approach. The Court allowed that the Legislative and Executive Branches could devise an adequate alternative funding remedy so long as the State could show, convincingly, that a thorough and efficient education can be met through expenditures lower than parity, or if the State showed that the I and J districts' spending contained inefficiencies. [Abbott XIX, supra, 196 N.J. at 560-563 (alteration in original) (emphasis added) (internal citations omitted).]

When the State made application to this Court in respect of SFRA -- its newest effort to conform to a constitutionally satisfactory method of funding for pupils in special needs districts (now denominated Abbott districts) -- the State already was implementing SFRA's funding formula in school districts throughout the state, except where it was constrained by the Abbott remedial orders issued as a result of our past findings of constitutional violation as to the Abbott plaintiff class. The existence of the remedial orders, issued for the benefit of the plaintiff class of Abbott schoolchildren, was of singular importance. It was the reason the State had to secure approval to alter the obligations imposed by those judicial orders. And, it played another consequential role in that it was the crucial fact that prevented the State from obtaining all the relief that it sought.

The State's motion to this Court in the fall of 2008 had asked us to review the constitutionality of SFRA. Specifically, the State's application sought: 1) a declaration that SFRA satisfied the requirements of the thorough and efficient clause of Article VIII, § 4, ¶ 1 of the New Jersey Constitution, and 2) an order relieving the State from the requirements imposed by this Court's prior remedial orders concerning funding for Abbott districts. Abbott XIX, supra, 196 N.J. at 549.

Our immediate response, before even conducting a hearing on the formula's soundness, reflected that the matter was first and foremost, a controversy with precise parties and carefully delineated proofs of constitutional violations that had provided the basis for the exacting remedial orders that the litigation had spawned. We said the following:

The State comprehends the unique procedural circumstances before us because its application includes a request to be relieved from compliance with this Court's prior remedial orders. The State also asks that we declare the new SFRA funding formula constitutional. The State made the policy choice to provide state funding to public school districts in the current fiscal year consistent with SFRA.

We cannot give an advisory opinion on SFRA's statewide constitutionality. The Abbott v. Burke litigation does not provide this Court with jurisdiction to address the statute's applicability to students not before the Court. However, we do have jurisdiction to determine whether SFRA is constitutional as applied to pupils in the Abbott districts. Moreover, the existing decisions and orders of this Court must serve as the starting point for any discussion of the constitutionality of SFRA as applied to the pupils who are the beneficiaries of those rulings.

Because those decisions have dictated, to date, how a constitutional level of state funding for the pupils in Abbott districts is to be provided, SFRA's constitutionality, which otherwise would be presumptive, must be approached differently. Through their pending applications the State and plaintiffs ask that we confront the intersection of the Legislature's new funding formula with our prior decisions.

In essence, the question is whether the formula should be permitted to replace the funding methodology previously ordered. [Abbott XIX, supra, 196 N.J. at 551-52 (emphasis added).]

With that limitation to the proceedings having been fixed, there followed a remand to an experienced and respected trial court judge, appointed as special master for this Court. That remand resulted in the preparation of a comprehensive record on SFRA's development and a full hearing on the criticisms of the formula. In the end, a comprehensive explanation and critique of those challenges was returned to us. Abbott XX, supra, 199 N.J. at 176-250. There is no need to explain again the minute details of the formula. Suffice it to say that it is a weighted formula, of many parts and layers.*fn13 It was carefully constructed to account for the myriad needs and cost considerations relevant when devising a permanent formula to perennially provide school districts with predictable amounts of sufficient resources that should permit the provision of educational services sufficient to enable pupils of all types everywhere to master the CCCS.

B.

In the Abbott XX proceedings before this Court that followed the remand hearing, we heard plaintiffs' objections to the formula, as well as the State's defense of its effort in developing the formula and its assertions that SFRA could accomplish all that its designers intended. The Attorney General herself made a rare appearance on behalf of the State and made representations that were both remarkable and singularly persuasive, for as our ruling stated, the Abbott XX decision was, in no small way, a matter of trust between the branches of government. See Abbott XX, supra, 199 N.J. at 146, 168-69, 172.

When the Court asked for assurance that the formula would be followed and necessary adjustments forthcoming if additional monies were called for by that examination, the Attorney General told this Court:

[Attorney General] Milgram: I want to talk for one moment about the question that you raise about if there is necessary funding will the State basically comply with that -- will the [L]egislature[?] What I will tell you is that the [L]egislature has been a partner with the [D]department [of Education] for the past five years. I have personally seen it.

If you look at the legislation that came out, unlike CEIFA[,] the legislation that came out in the SFRA tracks almost to the letter the Department of Education's recommendations for the school funding formula along with the enhancements that they'd made and the recommendations of the national experts. That's what came out in this formula. If the Court is concerned about the Abbott School Districts, order that the formula must always be fully funded as to the Abbott School Districts.

Acknowledging the economic downturn that had gripped the state since the formula's development, the Attorney General went on to reassure the Court that the State could fund SFRA and to invite specific protection for the Abbott districts:

[Attorney General] Milgram: . . . [I]f the Court is concerned about the Abbott School Districts under this formula, say that the formula is constitutional to the extent that it is always fully funded as to the Abbott School Districts. That's a reasonable way for the Court to have the assurances that you're looking for about what's going to happen in the future . . . .

The budget is the wors[t,] I think[,] it's probably been in the State of New Jersey for decades. We are in dire fiscal circumstances, and it is funded. This school funding formula is funded. And if you want the assurance to make sure that it's funded next year related to the Abbotts then find that for it to be constitutional it has to be fully funded as to [SFRA]. [(Emphasis added).]

Against the backdrop of the arguments and briefs of counsel and based on the record developed before the Special Master, accompanied by his proposed findings and conclusions of law, we set forth the basis for our holding. We said that although we could not be sure about the as-yet untested SFRA formula, we were persuaded to give the State the benefit of the doubt that SFRA would operate as promised. See Abbott XX, supra, 199 N.J. at 168-69, 172. We accepted the State's argument that SFRA's carefully developed formula was designed to deliver sufficient resources to provide pupils of all needs with resources for appropriate educational services to enable them to master the CCCS. Thus, solely for purposes of considering the State's application to alter the methodology for the provision of funding to the Abbott districts, we declared SFRA to be, presumptively, constitutionally adequate and valid to the extent that the record permitted its review, stating our holding precisely as follows:

We therefore hold that SFRA's funding formula may be applied in Abbott districts, with the following caveats. Our finding of constitutionality is premised on the expectation that the State will continue to provide school funding aid during this and the next two years at the levels required by SFRA's formula each year. Our holding further depends on the mandated review of the formula's weights and other operative parts after three years of implementation.

See N.J.S.A. 18A:7F-46(a), (b), -51(a), -55(f), -57(a), -59. [Id. at 146.]

The relief granted to the State was thus conditioned on two express mandates. The first required that the SFRA formula be fully funded. The second mandate, requiring a "look-back" and retooling of SFRA after its reexamination, underscored the importance to the Court of that first requirement of full funding. It also served another purpose. It was no small matter that our decision expressly took into account that SFRA's initial three-year period of implementation would be subject to rigorous review due to its requirement for reexamination, and adjustment if necessary, to component parts of the formula. That point was critical to this Court's extension of trust and expectation of good faith and commitment from the other two branches of government. Id. at 169 ("Our finding that that approach is not constitutionally infirm is tethered to the State's commitment diligently to review the formula after its initial years of implementation and to adjust the formula as necessary based on the results of that review."); see also id. at 146, 167, 174. On one level, the look-back obviously required funding in compliance with the formula as enacted. The required retooling could only happen based on a dissection of how the statute's formula actually worked once implemented. Moreover, it emphasized to the State the clear expectation that compliance with SFRA, in all respects regarding Abbott districts, was the condition on which constitutionality was premised. The Court acted on the basis of information at hand, but we emphasized that a state funding formula's constitutionality is not an occurrence at a moment in time; it is a continuing obligation. Today's holding issues in the good faith anticipation of a continued commitment by the Legislature and Executive to address whatever adjustments are necessary to keep SFRA operating at its optimal level. [Id. at 146.]

Thus, based on the record before us, we granted the State's request to implement SFRA's formula funding in Abbott districts in lieu of continued compliance with then-existing remedial orders governing funding to those districts. Id. at 145-46. We further allowed the State to utilize SFRA during its initial three-year implementation period without the added safety net of supplemental funding as previously had been required in Abbott districts.*fn14 Id. at 172-74. The Special Master had been concerned about SFRA's implementation in Abbott districts during the initial three years of the formula's operation if those districts did not have the added assurance of the resources that continued supplemental funding would provide. He had recommended that we require the assurance of supplemental funding during the first three years of SFRA's implementation. Id. at 248-49. However, the State strenuously urged instead that SFRA be permitted to be implemented as designed, as a unitary system of school funding, and we granted the State its request in full. Id. at 174.

Stripped to its essence, the decision and order entered in 2009 reflected a quid pro quo. The State asked to be relieved of binding judicial decrees in exchange for providing predictable school funding based on the statute it carefully had developed and enacted. Although in Abbott XX we could not say that the State had produced a formula that would guarantee students adequate funding to support a thorough and efficient education as measured by the CCCS, the State was allowed to effectuate SFRA's formula with the expectation that it could deliver to Abbott pupils all that the State assured. Id. at 175. Indeed, our holding in Abbott XX was a good-faith demonstration of deference to the political branches' authority, not an invitation to retreat from the hard-won progress that our state had made toward guaranteeing the children in Abbott districts the promise of educational opportunity.

Regrettably, the State did not honor its commitment. III.

As noted, in their initial motion papers, plaintiffs sought to have this Court order that additional funding in accordance with SFRA's formula requirements be forthcoming for the current year. Plaintiffs since have withdrawn that request and instead state that they seek "compliance" with this Court's decision and holding in Abbott XX going forward, that is in respect of the next and future fiscal years.

The State resists that request, arguing that separation of powers requires this Court to defer to the appropriations determinations made by the other branches and, in the alternative, that the funding cuts do not render the funding levels constitutionally insufficient. With respect to its appropriation power argument, the State asserts that fiscal distress necessitated cuts to state school aid from the aggregate amount that SFRA would have required and that its allocation of those cuts, as among districts, is the exclusive purview of the legislative and executive branches. In any event, the State urges that the method selected by the Governor and Legislature to allocate the reduction in state school aid was fair and equitable, made in good faith, and should have permitted districts to absorb the state aid loss without negatively affecting student achievement. Its argument concludes with its contention that the level of state school aid in FY 2011 has not breached the constitutional standard for a thorough and efficient system of education.

After the submission of briefs, which were extended by mutual consent of the parties, we heard oral arguments on January 5, 2011. Following those arguments, on January 13, 2011, we issued an Order of limited remand to the Special Master who had aided the Court in connection with the State's Abbott XX application. Although there was no question that SFRA had not been funded at the levels called for by the formula, the Court sought additional information and so instructed Special Master Peter E. Doyne, A.J.S.C., to consider "whether school funding through SFRA, at current levels, can provide for the constitutionally mandated thorough and efficient education for New Jersey school children." The Order placed the burden on the State to demonstrate "that the present level of school funding distributed through the SFRA formula can provide for a thorough and efficient education as measured by the [C]ore [C]urriculum [C]ontent [S]tandards in districts with high, medium, and low concentrations of disadvantaged students."

Thereafter, the State moved for clarification of the Order and for more time. The State requested a declaration that the Special Master was permitted to consider the fiscal challenges facing the State in his assessment of the constitutionality of SFRA as currently funded. The application was denied by Order dated February 1, 2011, the Court again expressly noting that it was retaining for its own consideration "the question of what effect, if any, the State's fiscal condition may have on plaintiffs' entitlement to relief in aid of litigants' rights." That said, our Order recognized that "the Special Master [was] authorized to entertain any and all evidence as he sees fit in the proper completion of his assigned task . . . ."

On February 11, 2011, the proceedings before the Special Master began. After eight days of hearings in which the Special Master heard testimony from ten witnesses and received in evidence numerous documents and exhibits, he issued his opinion with recommendations to the Court on March 22, 2011.

As per his charge, the Special Master reported on the level and impact of the cuts to school aid in districts of high, medium, and low concentrations of at-risk pupils.*fn15 He received and considered testimony from superintendents of school districts of all three classifications, the majority of whom were presented by the State. The testimony revealed that as a result of the $1.601 billion shortfall from full funding of SFRA, Abbott districts lost a total of $402.4 million or $1,425 per pupil. The districts with high concentrations of at-risk children, of which the Abbott districts were a subset, lost $687 million or $1,530 per pupil. Appendix at 88-89. Medium concentration districts lost $329 million or $1,158 per pupil, and low concentration districts lost $585 million or $944 per pupil. Ibid.

In his evaluation of that testimony, the Special Master concluded that although the districts absorbed the funding reductions in differing ways, the superintendents were nearly unanimous in their concern that they could not properly deliver the CCCS to all students with the reduced levels of state aid. The superintendents testified to eliminating teaching positions, limiting course offerings, increasing class sizes, and facing administrative burdens, which all contributed to the perceptions that they were failing in their delivery of the CCCS to their students, and in particular to at-risk pupils. Appendix at 56-71, 83-85. The Special Master's report distilled the evidence received during the hearings to four major findings:

1. If the SFRA formula had been fully funded for [FY 2011] an additional $1.6 billion would have been required;

2. Despite the State's best efforts, the reductions fell more heavily upon our high risk districts and the children educated within those districts;

3. The aid reductions have moved many districts further away from "adequacy"; and

4. The greatest impact of the reductions fell upon our at[-]risk students. [Appendix at 93.]

The Special Master reported that "[t]he loss of teachers, support staff and programs is causing less advantaged students to fall farther behind and they are becoming demonstrably less proficient." Appendix at 71. In sum, he concluded that the State failed to meet its burden to show that a thorough and efficient education can be provided, consistent with the CCCS, through the levels of SFRA funding provided in the FY 2011 Appropriations Act. Appendix at 95. With the benefit of that record and report by the Special Master, and the supplemental briefs of the parties, we again conducted oral arguments on plaintiffs' motion. That information and argument informs our consideration of plaintiffs' application.

IV.

We turn now to evaluate plaintiffs' motion in aid of litigants' rights. A Rule 1:10-3 motion is an appropriate vehicle for a party who alleges a violation of a judgment. See Loigman v. Twp. Comm. of Middletown, 308 N.J. Super. 500, 503-04 (App. Div. 1998). This Court has granted motions in aid of litigants' rights in prior Abbott decisions, where, for example, the State failed to act consistent with its representations regarding the manner it claimed it would fulfill a mandate of this Court. Abbott v. Burke, 163 N.J. 95, 100-101 (2000) (Abbott VI).

Here we have a failure of such a nature. The State made a conscious and calculated decision to underfund the SFRA formula when enacting the FY 2011 Appropriations Act. It was not inadvertent or a mistaken exercise of governmental authority. It directly contravened representations made by the State when procuring relief from prior judicial remedial orders that even the dissenters recognize were binding on the State. Thus, for the Abbott districts, it was an action by the State that directly contravened the judgment in Abbott XX, which had authorized the State to substitute full SFRA funding for the parity remedy in those districts.

When this Court permitted the substitution of our prior orders, which remediated a constitutional violation, with the State's alternative of SFRA funding, it did not alter the constitutional underpinnings to the replacement relief. Our grant of relief was clear and it was exacting: It came with express mandates. We required full funding, and a retooling of SFRA's formula's parts, at the designated mileposts in the formula's implementation. When we granted the State the relief it requested, this Court did not authorize the State to replace the parity remedy with some underfunded version of SFRA.

The State has breached the very premise underlying the grant of relief it secured with Abbott XX. By doing so, it has breached the Abbott XX judgment that carried ongoing responsibilities and obligations owed by the State to the Abbott plaintiff class. Hence, the plaintiff class of Abbott schoolchildren has every right to relief in aid of litigants' rights based on the State's failure to fully fund SFRA in Abbott districts.

In so holding we add that the record created in this matter provides necessary support for our conclusion. The Special Master's finding that the impact of the reductions is being felt most significantly in high concentration districts is the most telling. It reveals that the cuts to Abbott districts, which are all high concentration districts, were not of a de minimus or inconsequential nature that could, or should, be greeted by this Court with indulgence. Nor, based on the State's equivocal representations about future levels of funding made to us at argument, can we view this as an aberrational or temporary alteration in the State's responsibilities.

Thus, these reductions have had a significant impact on the beneficiaries of our prior remedial orders, namely the plaintiff pupils of the Abbott districts. It was to remedy their decades-long constitutional deprivation that this Court issued remedial orders. And, it was from those past remedial orders that the State asked to be excused in exchange for providing funding under SFRA's formula. Notwithstanding its promises that SFRA funding would replace the parity remedy funding, the State did not deliver the quid pro quo.

V.

We turn to address the arguments that the State advances in opposition to plaintiffs' motion in aid of litigants' rights.

A.

The State claims that because the appropriation power is vested in the Legislature, see N.J. Const. art. VIII, § II, ¶ 2, this Court should defer to the appropriations choices made by the Legislature in the current fiscal year, when financial distress plagued the State's ability to satisfactorily address all the demands on state government. In support of its claim that the Appropriations Clause power vested in the Legislature trumps all other considerations, the State cites to two past decisions, wherein this Court stated that "the power and authority to appropriate funds lie solely and exclusively with the legislative branch of government." City of Camden v. Byrne, 82 N.J. 133, 148 (1980); see also Karcher v. Kean, 97 N.J. 483, 490 (1984) (noting that "the constitutional budgetary and appropriations authority [] is both centered in and shared by the legislative and executive branches"). According to the State, any relief ordered by the judiciary would constitute an impermissible intervention into the budgetary process.

The case law cited by the State addressed situations in which the suspension of other statutory enactments was at issue. No one would quarrel with the now well-understood principle that "the Legislature has the inherent power to disregard prior fiscal enactments," even where statutes "'dedicate' state revenues for a particular purpose." Camden, supra, 82 N.J. at 147 (deferring to Legislature's appropriation power and executive's line-item veto power where plaintiffs challenged non-payment of certain statutory disbursements and revenue sharing provisions); Karcher, supra, 97 N.J. at 490 (affirming executive's line-item veto power over statutory expenditures, including those for distribution and apportionment of state aid to municipalities); see also Cnty. of Camden v. Waldman, 292 N.J. Super. 268, 291-92 (App. Div. 1996) (explaining how it is beyond cavil that Legislature can temporarily suspend other statutory enactments through annual appropriation acts), certif. denied, 149 N.J. 140 (1997). In Camden, supra, we rejected municipal and county challenges to the political branches' failure to appropriate state revenues in conformity with statutes that required disbursements to municipalities. 82 N.J. at 142-45.*fn16 Similarly, in Karcher, supra, the Court upheld the Governor's exercise of his line-item veto power in respect of provisions relating to state aid to municipalities*fn17 and highway appropriations. 97 N.J. at 493-501. The Governor's use of the line-item veto power was also upheld in respect of general provisions "relating to salaries, compensation, and the status of various state employee positions[,]" and restrictions on "funds appropriated for capital construction by the Department of Corrections." Id. at 493, 501-512. However, those cases do not support the State's position in this case.

It does not follow that the Appropriations Clause authority to modify or suspend statutes that raise some expectation of funding, see, e.g., Waldman, supra, 292 N.J. Super. at 291-92, empowers the political branches to ignore judicial orders and decrees that specify a remedy to ameliorate a historical finding of constitutional violation. It simply cannot be said that the authority to "disregard prior fiscal enactments," Camden, supra, 82 N.J. at 147, carries a corresponding authority to suspend judicial decrees issued to remedy substantiated constitutional deprivations. Cf. Robinson v. Cahill, 69 N.J. 133, 154 (1976) (Robinson IV) (stating clearly, although in dicta, that "[i]f there remains a theoretical conflict between the strictures of the Appropriations Clause and the mandate of the Education Clause, we hold the latter to be controlling in these circumstances").

To state the question is to present its answer: how is it that children of the plaintiff class of Abbott schoolchildren, who have been designated victims of constitutional deprivation and who have secured judicial orders granting them specific, definite, and certain relief, must now come begging to the Governor and Legislature for the full measure of their education funding? And, how can it be acceptable that we come to that state of affairs because the State abandoned its promise? The State's position is simply untenable.

We hold that the Appropriations Clause creates no bar to judicial enforcement when, as here,

1) the shortfall in appropriations purports to operate to suspend not a statutory right, but rather a constitutional obligation,

2) which has been the subject of more than twenty court decisions, or orders, defining its reach, and setting out judicial remedies for these plaintiff pupils for its breach, and

3) where the harm being visited is not some minor infringement of the constitutional right but a real, substantial, and consequential blow to the achievement of a thorough and efficient system of education to the pupils of the Abbott districts, and

4) where the formula the State has underfunded was one created by the State itself, and made applicable to the plaintiff pupils of Abbott districts, in lieu of prior judicial remedies, by the Court on application by the State based on specific representations that the statutory scheme, SFRA, would be fully funded at least as to the Abbott pupils, and fully implemented as to those districts.

In such circumstances, the State, having procured judicial relief based on specific representations, will not be heard to argue that the Appropriations Clause power leaves the plaintiff children of the Abbott districts without an effective remedy.

B.

The State also advocates that the availability of alternative funding streams and systemic reforms could have enabled the delivery of a constitutional education despite the diminished levels of state aid.

First, and most fundamentally, we reject the collateral argument that the availability of certain non-SFRA funds can be used to deflect the State's responsibility for the provision of a constitutionally mandated, adequately funded thorough and efficient system of education. Specifically, the State cites the availability of federal funds*fn18 and excess surpluses*fn19 to offset and ameliorate the impact of school aid reductions on district budgets. However, the record reveals that in many cases the alternative funding available was insufficient to fill the gaps left by the reductions in state aid in the individual Abbott districts.

The State asserts that the Abbott districts were able to mitigate the impact of aid reductions with stimulus-based federal funds. For example, the State argues that "$158 million of . . . [American Recovery and Reinvestment Act of 2009 (ARRA)] funds remained available in the Abbott districts as of June 30, 2010."*fn20 In total, the State calculates that Abbott districts had $297 million in federal funding available before the start of the current school year. According to the State, the federal funds available to the Abbott districts exceeded the $256 million reduced from those districts. That representation is accurate only to a point; it provides an incomplete picture of the economic experiences of the Abbott districts.

The calculations proffered by the State compare available federal funding to the sum of state aid reduced between FY 2010 and FY 2011 ($256 million); the State does not address the more relevant figure that represents the sum of state aid that the Abbott districts would have received had SFRA been fully funded in FY 2011 ($402 million). A comparison of available federal funds with the amount of funding reduced from SFRA's statutory formula reveals that federal funds actually fell short in the aggregate of replacing the aid lost from the Abbott districts. And the State makes no attempt to show that the federal funds replaced actual aid lost under SFRA on a district-by-district basis. Instead, the State bases its representations to this Court on aggregate funding data. True, the Abbott districts received $297 million in federal funds; however, on an individual basis, the majority of Abbott districts lost more aid from FY 2010 to FY 2011 than they received in federal funds.

Further, in an exercise of faulty logic, the State also reasons that the availability of surplus funds in individual districts after the State withheld monies mid-year,*fn21 demonstrates that SFRA provided funding beyond the levels strictly required to deliver a constitutional education. However, it does not follow that, because districts were surprised by the mid-year withholding and were unable to efficiently and effectively regroup and redirect their expenditures mid-school-year, the districts were overfunded. The argument proffered by the State -- that the districts should have expended their surplus funds to ensure delivery of the CCCS-- would require school administrators to deplete their resources without any assurance that state funding streams would flow more predictably in the coming years. To rely on the fortuitous circumstance that some districts locally possess sufficient excess surplus to ameliorate the State's funding shortfall is impracticable and penalizes those districts whose fiscal responsibility yielded a reserve of emergency funds.

Finally, in an effort to defend the aid reductions imposed in the current school year, the State proffers that districts could have mitigated the impact of the diminished funding by implementing specific educational reforms. Principally, the State challenges the efficacy of existing tenure laws, teacher evaluation methods, and collective bargaining agreements. For example, the State argues that marginal increases in class size would not have impacted delivery of the CCCS if districts could select teachers for reductions in force based on merit, and be exempt from a "last in, first out" policy.

While there may or may not be virtue in future educational policy reforms, the debate regarding how best to transform the educational system must be reserved for a different forum. The State's presentation of such arguments in connection with the instant matter is simultaneously premature and laggard. In one respect, the State cannot transform its defense to this motion in aid of litigants' rights into a vehicle to obtain an indication of some judicial approval for collateral labor law and education policy reforms that are, as-yet, unadopted by the Legislature. Nor can the State assert that districts should have mitigated the impact of budget reductions somehow before those initiatives were legislatively obtained. Unless and until the State achieves the legislative reforms it prefers, and puts those tools in the hands of the districts, arguments attacking collective bargaining agreements or targeting interest groups in the education community, do not advance the State's position in this matter.

Moreover, to the extent that the State asserts that there is room for greater efficiencies and cost-savings available from the tools presently in the hands of districts, this broad brush attempt at disparagement is unpersuasive. Moreover, we cannot help but note that a significant portion of the Abbott SFRA funds go to districts that remain under State supervision. The State should tend its own house.

In dispensing with the constitutional and collateral arguments advanced by the State, we close by emphasizing that if and when the reforms presented by the State are adopted and prove efficacious, the fully funded SFRA formula would adjust to reflect those cost savings. If education reforms are adopted in the future, the root costs will be reduced as cost-saving policies are incorporated and resources are economized. Thus, underfunding SFRA through modifications to its statutory formula is not required to effectuate cost-savings, but instead undermines the operability of the statute's own self-adjusting mechanisms. Indeed, it returns this state to the structureless situations of the past where school districts had no way to plan because they could not anticipate in advance what the State would choose to fund for education from year to year. Predictability in funding is key, we emphasized in Abbott II, supra, 119 N.J. at 385 ("Funding must be certain . . . ."), and a significant part of SFRA's promise was its consistency. See Abbott XX, supra, 199 N.J. at 173 (noting "formula's insistence on predictability and transparency in budgeting, and accountability").

VI.

A.

Finally, having dispensed with the constitutional and collateral defenses raised by the State, we turn back to consider the breadth of remedy that is appropriate in plaintiffs' motion in aid of litigants' rights.

As noted earlier, the determinative finding that gives rise to our ability to grant relief lies in the fact that the Abbott plaintiff class of schoolchildren were the beneficiaries of prior remedial orders, issued to remedy the constitutional deprivation that they litigated and this Court ultimately found had been visited on them. It was those specific remedial orders that had bound the State to a precise form of educational funding in the Abbott districts. And, it was from those past remedial orders that the State asked to be excused in exchange for providing funding under SFRA's formula.

We have now found that the State has breached its part in the exchange of obligations that occurred two years ago, when the State was relieved of its duty to adhere to the remedial orders imposed to alleviate decades-old findings of constitutional deprivation. Our mandate to act in the face of the present finding lies in the background of litigation that had resulted in specific relief of a constitutional dimension for the instant plaintiffs, namely the parity remedy imposed in the Abbott districts. That remedy was exchanged for a specific alternative form of relief: SFRA's level of funding. That presently is the level of funding that the State constitutionally must provide to the children of the Abbott districts. Although it has failed to do so in the current fiscal year, the present request for a remedy focuses only on the future.

Ordinarily, we could provide a choice to the State in the form of remedy: either fund the Abbott districts at the level authorized by our previous decision in Abbott XX, that is, provide the Abbott districts with the full funding promised by SFRA, or return to the parity remedy that the previous remedial orders required. However, there is no choice to be provided here. Neither of the parties wants a return to the parity remedy, nor do we have any independent interest in perpetuating it.

SFRA is the preferable and predictable way to provide funding to the children of the Abbott districts so that sufficient resources are provided and can be planned for in the preparation of cohesive educational programming. The children of the Abbott districts constituted the plaintiff class in Abbott XX and were the subject of its holding. Only they have the historic finding of constitutional deprivation and only they were the beneficiaries of the remedial orders that the State asked us to switch for the SFRA funding. Their right to full funding is a constitutional mandate, supported by judicial findings and past orders. Those past rulings are not subject to suspension under the legislative appropriation power.

We hold that the plaintiff class of schoolchildren from the Abbott districts cannot be deprived of the full SFRA funding that the State offered, and received approval to exchange for the decisions and remedial orders that had previously established the funding required for such school districts.

B.

Our finding as to the pupils in the Abbott districts notwithstanding, plaintiffs seek a broader form of relief. Plaintiffs claim the right to demand full funding of SFRA for all districts in the state. Their argument is based on a broad interpretation of our holding in Abbott XX. However, plaintiffs can look in vain for support in Abbott XX for a finding that the failure to provide full funding of SFRA to any district is the equivalent of the constitutional violation previously litigated and found to exist for children in Abbott districts. Indeed, in the prior application that led to the Abbott XX holding, we specifically declined to recognize that pupils from any district other than the Abbott districts were before us when taking up the question of SFRA's facial constitutionality. See Abbott XIX, supra, 196 N.J. at 551-52. Without that finding of constitutional deprivation, pupils of other districts stand in the same relation to SFRA as claimants seeking funding under any other statutory program that the Legislature may suspend or modify through the appropriations process, and thus appear to run directly into the holdings of Camden and Karcher earlier discussed.

We are well aware of the importance of a predictable stream of education funding for any school district. And, the record developed provides a sense of the unpredictability and disruption to instructional planning, services, and programming, that has resulted in districts of all socioeconomic types due to the Legislature's failure to abide by SFRA's formulaic terms. However, our authority to act in this matter is limited. The extent of this Court's jurisdiction in this matter starts and ends with the series of litigated proceedings that preceded this action. Those actions delineated the responsibility of the State to the representative plaintiff schoolchildren from the Abbott districts.

The Abbott litigation has proceeded with two distinct adversarial parties: on the one side, New Jersey schoolchildren who attend schools in certain constitutionally deficient districts; and on the other side, the State, who has defended its funding schemes as consistent with the thorough and efficient clause. In Abbott XX, this Court found that SFRA was a constitutionally adequate means for the State to provide a thorough and efficient education for students in Abbott districts. Abbott XX, supra, 199 N.J. at 175. That said, the ELC now argues that our holding in Abbott XX entitles all children, or if not all, then all at-risk children, across the State to relief under this application for litigants' rights. We do not see our authority as being so extensive. This Court's jurisdiction is limited to rectification of the constitutional violation suffered by the Abbott litigants.

The scope of relief in a motion in aid of litigants' rights is limited to remediation of the violation of a court order.

See Asbury Park Bd. of Educ. v. N.J. Dep't of Envtl. Prot., 369 N.J. Super. 481, 486 (App. Div.) (explaining that motion in aid of litigants' rights is intended to allow court that issued an order to rectify violation of that order), aff'd in part, 180 N.J. 109 (2004); see also Abbott VI, supra, 163 N.J. at 100-01 (2000) (explaining that motion in aid of litigants' rights allows court to order relief where party fails to comply with mandate set out by that court). Throughout the Abbott litigation, this Court's orders have done no more than require that Abbott districts receive funding commensurate with a level that allows the provision of a thorough and efficient education. This motion in aid of litigants' rights can do no more than ensure compliance with that mandate.

Further, a litigant typically does not have standing to assert the rights of third parties. Jersey Shore Med. Ctr.-Fitkin Hosp. v. Estate of Sidney Baum, 84 N.J. 137, 144 (1980); State v. Norflett, 67 N.J. 268, 277 n.7 (1975). While substandard educational conditions --- perhaps of constitutional dimension -- may exist in districts other than those that have been designated as Abbott districts, this Court has never stipulated any remedy, nor even found a constitutional violation, for children in non-Abbott districts. Simply stated, the present Abbott plaintiffs do not have standing in this litigation to seek vindication of the rights of children outside of the plaintiff class.

In sum, in respect of the undisputed failure on the part of the State to fully fund SFRA in FY 2011, the present disposition can extend no further than the parties involved in the earlier proceedings in these school funding cases, namely the plaintiff class of schoolchildren of the Abbott districts.

VII.

One final point requires attention. Our dissenting colleagues, without any historical or precedential support, attempt to place at issue the time-honored doctrine that majority rules. When this Court is constituted as a five-person Court, whether deciding a case or a motion, a vote of three persons has always been sufficient to determine the outcome of the matter.

The dissenters are unable to identify any exception because there is none. Indeed, the dissenters cannot point to a single motion that was denied by a three-to-two vote when the Court was constituted as a five-person Court. In fact, all three-two vote examples referred to by the dissent were grants of motions. The historical practice of this Court shows that when constituted with only five persons, three affirmative votes are sufficient to decide a motion. Thus, the dissenters' transparent attempt at nullification of a decision with which they disagree fails on every factual and legal basis.

A.

It is well recognized that a public body, such as this Court, is presumed to have power to take a given action when a quorum is present and a majority of the members voting favor the action.

New Jersey adheres to the rule that where a quorum exists, a majority of those present are authorized to take action. See, e.g., Borough of Oakland v. Bd. of Conservation & Dev., 98 N.J.L. 806, 816 (E & A 1923) (explaining that where no exception is present, "the common law rule prevails that a majority of the board constituting a quorum may lawfully act"); Barnert v. Mayor of Paterson, 48 N.J.L. 395, 400 (Sup. Ct. 1886) ("When the charter of a municipal corporation or a general law of the state does not provide to the contrary, a majority of the board of aldermen constitute a quorum, and the vote of a majority of those present, there being a quorum, is all that is required for the adoption or passage of a motion or the doing of any other act the board has power to do."); Mountain Hill, LLC v. Middletown Twp., 353 N.J. Super. 57, 64 (App. Div.) (discussing whether "the Legislature intended to modify the common law rule that once a quorum was established, only a majority of the quorum was needed to take any action"), certif. denied, 175 N.J. 78 (2002); Matawan Reg'l Teachers Ass'n v. Matawan-Aberdeen Reg'l Sch. Dist. Bd. of Educ., 223 N.J. Super. 504, 507 (App. Div. 1988) ("It must be assumed that by its silence the Legislature intended the common-law rule to apply, i.e., a majority vote of the members of the board constituting a quorum shall be sufficient."). The common-law default that a majority of a quorum may act on behalf of a body is further supported by Robert's Rules of Order. See Robert's Rules of Order § 44, p. 387 (10th ed. 2000) ("[T]he basic requirement for approval of an action or choice by a deliberative assembly, except where a rule provides otherwise, is a majority vote.").

The common-law presumption is not altered in the context of judicial bodies, and the dissent does not cite to any precedent for its contrary proposition. Indeed, in 1967, the United States Supreme Court spoke on the issue. It heard argument as to whether the Federal Trade Commission, which has five members, required the votes of two members or three members to enter a binding order when only three members participated in a given action. Justice Brennan, writing for a unanimous court, explained: "The almost universally accepted common-law rule is . . . in the absence of a contrary statutory provision, a majority of a quorum constituted of a simple majority of a collective body is empowered to act for the body." FTC v. Flotill Prods., Inc., 389 U.S. 179, 183-84, 88 S. Ct. 401, 404, 19 L. Ed. 2d 398, 402 (1967). In the presence of statutory silence, a "body is justified in adhering to that common-law rule." Id. at 184, 88 S. Ct. at 404, 19 L. Ed. 2d at 402-03. Justice Brennan dismissed the argument that a different common-law rule might apply to judicial actions. Ibid.

Our courts have affirmed the principle that a specified threshold needed to take action is understood in reference to those who are present and voting, assuming that a quorum exists. For example, where a statute did not specify that a unanimous vote of a board of health required the unanimous vote of all the members of the board, the court explained that the unanimous vote of those present was sufficient to adopt a resolution. Coxon v. Inhabitants of Trenton, 78 N.J.L. 26, 29 (Sup. Ct. 1909).

B.

There are a number of instances where the rules governing this Court derogate from common-law norms. Notably, Rule 2:13-2(a) provides that a quorum requires the presence of five members of the Court, rather than four (which would constitute a majority, and therefore a quorum under common-law principles). However, nothing in the rules abrogates the ability of this Court to take action to grant a motion for enforcement of litigants' rights by majority of a quorum. The common-law presumption thus governs.

That conclusion is reinforced by the compelling fact that, for certain types of motions, the rules do alter the default presumption that a majority of a quorum can take action. A motion for reconsideration requires, in addition to "a majority of the court," that a justice or judge who concurred in the original decision be part of the majority deciding to rehear the case. R. 2:11-6(b). The requirements to take action on a motion are loosened in a number of circumstances: motions in the Appellate Division may be decided by a single judge (R. 2:8-1(c)); motions for adjournment, extension, or acceleration may be granted by the Chief Justice, the Clerk of the Court, a presiding judge of the Appellate Division, or the Clerk of the Appellate Division (R. 2:9-2); and temporary relief in emergent matters can be granted by a single Supreme Court Justice or a single judge of the Appellate Division (R. 2:9-8). Those alterations illustrate that decisions on certain motions can be rendered in the absence of a quorum and with fewer votes than a majority of the court.*fn22 In the absence of any special rule applicable here, it is utterly incongruous to suggest that, although three members of a five-person Court can decide a case on the merits, a supermajority of four -- potentially eighty percent of a duly-constituted quorum --- is required to grant affirmative relief on a motion in aid of litigants' rights.

C.

In sum, in the absence of a statute, rule, or constitutional provision on point, the default common-law principle governs in this case, as it has done in all other motion votes when the Court was acting on the basis of a mere quorum of five members. Here, the Court, acting with a five-member quorum, is taking its consistent approach with respect to the vote required for affirmative action on the pending motion in aid of litigants' rights under Rule 1:10-3 by acting on the basis of the affirmative votes of three members. This is a straightforward application of a universal common-law norm.

To hold otherwise, without any basis, would yield the illogical and indefensible result that this Court, acting with a quorum of its membership, will allow three votes to decide a case in a party's favor, yet require four votes to ensure continuing relief to that party whose rights had already been vindicated. It should not be lost on anyone contemplating the dissenters' argument that the same two members of this Court, just two weeks ago, asserted the right to speak for the Court when their vote in favor of the outcome reached was based only on three votes --- theirs plus one vote by a temporarily assigned judge of the Appellate Division --- to two against. See He v. Miller, ___ N.J. ___ (2011).

VIII.

We order that funding to the Abbott districts in FY 2012 must be calculated and provided in accordance with the SFRA formula. In making the calculation for FY 2012, the formula must adjust to correct the State's failure to provide SFRA's statutory level of formula funding to those districts during FY 2011.*fn23 We further order that, whether or not the formula is fully funded on a statewide basis, the State nevertheless must undertake a look-back analysis that is meaningful and relevant for the Abbott districts so that SFRA continues to operate optimally and as intended in future years for pupils in those districts.

JUDGE STERN, temporarily assigned, joins in JUSTICE LaVECCHIA's opinion, and JUSTICE ALBIN joins in the judgment. JUSTICE ALBIN also filed a separate, concurring opinion. JUSTICE RIVERA-SOTO filed a separate, dissenting opinion, in which JUSTICE HOENS joins. JUSTICE HOENS filed a separate, dissenting opinion in which JUSTICE RIVERA-SOTO joins. CHIEF JUSTICE RABNER and JUSTICE LONG did not participate.

NOT TO BE PUBLISHED WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS

RAYMOND ARTHUR ABBOTT, a minor, by his Guardian Ad Litem, FRANCES ABBOTT; ARLENE FIGUEROA, FRANCES FIGUEROA, HECTOR FIGUEROA, ORLANDO FIGUEROA and VIVIAN FIGUEROA, minors, by their Guardian Ad Litem, BLANCA FIGUEROA; MICHAEL HADLEY, a minor, by his Guardian Ad Litem, LOLA MOORE; HENRY STEVENS, JR., a minor, by his Guardian Ad Litem, HENRY STEVENS, SR.; CAROLINE JAMES and JERMAINE JAMES, minors, by their Guardian Ad Litem, MATTIE JAMES; DORIAN WAITERS and KHUDAYJA WAITERS, minors, by their Guardian Ad Litem, LYNN WAITERS; CHRISTINA KNOWLES, DANIEL KNOWLES and GUY KNOWLES, JR., minors, by their Guardian Ad Litem, GUY KNOWLES, SR.; LIANA DIAZ, a minor, by her Guardian Ad Litem, LUCILA DIAZ; AISHA HARGROVE and ZAKIA HARGROVE, minors, by their Guardian Ad Litem, PATRICIA WATSON; and LAMAR STEPHENS and LESLIE STEPHENS, minors, by their Guardian Ad Litem, EDDIE STEPHENS, Plaintiffs, v. FRED G. BURKE, Commissioner of Education; EDWARD G. HOFGESANG, NEW JERSEY DIRECTOR OF BUDGET and ACCOUNTING; CLIFFORD A. GOLDMAN, NEW JERSEY STATE TREASURER; and NEW JERSEY STATE BOARD OF EDUCATION, Defendants.

SUPERIOR COURT OF NEW JERSEY BERGEN COUNTY

DOCKET No. M-1293

OPINION/RECOMMENDATIONS TO THE SUPREME COURT

Hearings: February 14, 2011 to February 25, 2011;

Closing Arguments March 2, 2011; Post-Trial Submissions March 14, 2011

Decided: March 22, 2011

Honorable Peter E. Doyne, A.J.S.C.

Jon Martin, Deputy Attorney General; Nancy Kaplen, Robert Lougy and Michelle Lyn Miller, Assistant Attorneys General; Shannon M. Ryan, Lisa Kutlin and Michael C. Walters, Deputy Attorneys General, argued the cause for defendants (Ms. Kaplen, of counsel and on the brief; Mr. Lougy, Ms. Miller, Ms. Kutlin, Ms. Ryan, and Mr. Walters, on the briefs). David G. Sciarra, Executive Director, Education Law Center, Gregory G. Little (White & Case, LLP) of the New York bar, admitted pro hac vice, and Eileen M. Connor, argued the cause for plaintiffs (Mr. Sciarra, Gibbons P.C., and White & Case, LLP, attorneys; Mr. Sciarra, Lawrence S. Lustberg, Theresa S. Luhm, Ms. Connor, Mr. Little Elizabeth A. Athos, John D. Rue, Brandon C. Freeman (White & Case, LLP) of the New York bar, admitted pro hac vice, and Derrick F. Moore (White & Case, LLP) of the New York bar, admitted pro hac vice, on the briefs). Stephen Fogarty argued on behalf on behalf of amici curiae Boards of Education of Montgomery Township and Piscataway Township (Fogarty & Hara, Esqs., attorneys; Mr. Fogarty, Jane Gallina Mecca and Cameron R. Morgan, on the briefs). Richard E. Shapiro argued on behalf of amici curiae Boards of Education of City of Bridgeton, Jersey City Public Schools and City of Perth Amboy (Richard E. Shapiro, LLC, attorney). Frederick A. Jacob argued on behalf of amicus curiae Buena Regional School District (Jacob & Chiarello, LLC, attorneys). John D. Rue joined in the action on behalf of amicus curiae Disability Rights New Jersey (White & Case, LLP, attorneys). Avidan Cover joined in the action on behalf of amici curiae New Jersey State Conference of the NAACP, New Jersey Black Issues ...


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