Rosalie Bacon v. New Jersey State Department

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2452-14T1

ROSALIE BACON, individually and on

behalf of G.P., Z.P., J.B., M.B.,

D.B., and Z.H.; JOSEPH BARUFFI,

individually and on behalf of J.B.;

ELIZABETH CULLEN, individually and

APPROVED FOR PUBLICATION

on behalf of T.C.; EDIE RILEY,

individually and on behalf of S.R.; November 6, 2015

ARNETTA RIDGEWAY and CHRISTOPHER

GLASS, individually and on behalf of APPELLATE DIVISION

J.G., F.G., and D.G.; COMMERCIAL,

HAMMONTON, LITTLE EGG HARBOR, MAURICE

RIVER, OCEAN, QUINTON, UPPER DEERFIELD,

WALLINGTON, BUENA REGIONAL, CLAYTON,

EGG HARBOR CITY, LAKEHURST, LAKEWOOD,

LAWRENCE and WOODBINE SCHOOL DISTRICTS,

Plaintiffs-Appellants,

v.

NEW JERSEY STATE DEPARTMENT

OF EDUCATION,

Defendant-Respondent.

____________________________________

Argued September 30, 2015 – Decided November 6, 2015

Before Judges Alvarez, Haas and Manahan.

On appeal from Superior Court of New Jersey,

Law Division, Mercer County, Docket No. L-

1989-14.

David G. Sciarra argued the cause for

appellants (Education Law Center and Jacob &

Chiarello, LLC, attorneys; Mr. Sciarra and

Theresa S. Luhm, on the briefs).

Donna Arons, Deputy Attorney General, argued

the cause for respondent (John J. Hoffman,

Acting Attorney General, attorney; Michelle L.

Miller, Assistant Attorney General, of

counsel; Ms. Arons, on the brief).

The opinion of the court was delivered by

HAAS, J.A.D.

Plaintiffs, a group of fifteen school districts, and

parents and children from those districts, appeal from the Law

Division's December 15, 2014 order dismissing their complaint.

Plaintiffs brought the complaint as a summary action "to enforce

agency orders" under Rule 4:67-6(a)(2). Plaintiffs sought to

compel defendant New Jersey State Department of Education (the

Department) to provide "the funding and high quality preschool

provided by the School Funding Reform Act of 2008 [SFRA], along

with facilities improvements and other measures . . . ."

The trial judge ruled that plaintiffs could not pursue the

summary action under Rule 4:67-6(a)(2) because the district-

specific needs assessments which they sought to enforce did not

require the Department to fully fund the districts under the

SFRA or otherwise provide for specific relief and, therefore,

there were no orders capable of being enforced under the rule.

Having carefully reviewed the record and arguments on appeal, we

affirm.

2 A-2452-14T1

I.

In December 1997, twenty school districts, known as the

"Bacon districts,"1 filed a complaint in the Chancery Division

against the Department, the Commissioner of the Department (the

Commissioner), and several State officials. Bacon v. N.J. State

Dep't of Educ., 398 N.J. Super. 600, 606 (App. Div. 2008),

certif. denied, 210 N.J. 218 (2012). The districts were "rural

and property-poor" and sought a declaratory judgment that the

Comprehensive Educational Improvement and Financing Act of 1996,

N.J.S.A. 18A:7F-1 to -42 (CEIFA), failed to provide a thorough

and efficient education to their students, in violation of the

New Jersey Constitution. Ibid.

In their complaint, the Bacon districts sought State

"funding equivalent to that provided to the State's richest

school districts." Ibid. Essentially, the Bacon districts

wanted to be funded in the same manner as their urban

counterparts, the Abbott districts. Id. at 606-07. Under

CEIFA, all districts with concentrations of impoverished

students received State aid to address the unique educational

difficulties that face such students. Id. at 605. All

districts classified as Abbott districts received an additional

1

The number of districts involved in this litigation has

continuously varied.

3 A-2452-14T1

type of aid, known as parity aid, which was "intended to support

the per pupil expenditure level of the Abbott [d]istricts at the

level of" New Jersey's wealthiest districts. Ibid. (citing

Abbott v. Burke, 153 N.J. 480, 567 (1998) (Abbott V)).

In February 1998, the parties entered into a consent order

and jurisdiction was transferred to the Commissioner, who

transmitted the matters to the Office of Administrative Law.2

Id. at 607. A bifurcated hearing was held before an

Administrative Law Judge (ALJ). Ibid. At the first phase of

the hearings, the ALJ determined that the districts had been

using their "CEIFA funding appropriately." Id. at 608.

During the second phase of the hearings, the districts

needed to show "that educational deficiencies existed and the

deficiencies could not be remedied, under current law and

funding levels, by different programmatic and fiscal choices."

Ibid. The ALJ determined that five districts needed additional

funding; however, the Commissioner subsequently found that only

one district needed additional funding and that CEIFA funding

was sufficient with respect to the other districts. Ibid.

2

After the Commissioner and the Department filed motions to

dismiss the petition for lack of standing, "the petition was

amended to add several students attending some of the school

districts and their parents." Id. at 607.

4 A-2452-14T1

Eight districts ultimately appealed the Commissioner's

decision to the State Board of Education (the Board). Id. at

608-09. The Board issued its final decision on January 4, 2006.

Id. at 609. Overall, the Board found that Bacon district

students were "not being afforded a thorough and efficient

education." Ibid. Additionally, the Board determined that "the

children in [the Bacon districts] had 'special needs arising

from the socioeconomic conditions in the districts[,]'" which

were not being addressed by the available programming. Ibid.

The Board "recognize[d] that CEIFA has provided these districts

with more fiscal resources than ha[d] been available to them

previously" and that "progress ha[d] been made under CEIFA to

improve the quality of the education" in the Bacon districts.

In spite of those gains, the Board still concluded that the

students were being deprived of a thorough and efficient

education. The Board also determined that CEIFA had created a

fragmented funding system that failed students statewide, not

just in the Abbott and Bacon districts.

After determining that there were constitutional violations

in the Bacon districts, the Board examined the remedies that

would best address the specific needs of those districts.

Significantly, the Board rejected the idea

that merely providing the [Bacon] districts

with the same fiscal resources that are

5 A-2452-14T1

provided to the Abbott [d]istricts will

ensure that the students of these districts

are in fact afforded the educational

opportunity to which they are entitled.

While poor, the districts involved here are

not identical to the districts that have

been classified as Abbott [d]istricts. The

very fact that they are not urban means that

they face a unique set of circumstances that

are different from those confronting the

poor urban districts.

As an alternative to providing the Bacon districts with the same

funding as Abbott districts, the Board directed the Commissioner

to supervise the Department in "develop[ing] a design for a

needs assessment to be performed in" the Bacon districts that

would focus on the unique problems that confronted the

individual districts.

In response, the Commissioner "recommended awaiting

executive and legislative action on a new funding formula" then

being considered by the Governor and the Legislature. Bacon,

supra, 398 N.J. Super. at 613. The new funding formula was

enacted in 2008 as the SFRA, N.J.S.A. 18A:7F-43 to -63. Ibid.

Whereas CEIFA created a fragmented funding system, SFRA removed

references to Abbott districts, id. at 613, n.10, and applied

one uniform funding formula to all 618 school districts in New

Jersey. Id. at 615. Under SFRA:

[T]he Department [would] calculate how much

it costs to meet the constitutional mandate

of affording every student in this [s]tate a

thorough and efficient education. The State

6 A-2452-14T1

then [would] base[] its share of the

requirement by the wealth of a district;

poorer districts [would] get a higher

percentage of their educational budget from

the State.

[Ibid.]

Before SFRA was enacted, the Bacon districts appealed the

Board's 2006 decision to this court. Id. at 612. Plaintiffs

requested that the court "grant them status comparable to Abbott

districts and award[ing] them the same financial resources

provided to their urban counterparts . . . ." Id. at 615. We

declined to provide such relief. Instead, we deferred to the

Board's approach of individualized needs assessments, referring

to interim judicial funding as "a last resort." Id. at 616-17.

We felt it particularly appropriate to avoid a judicially-

compelled funding remedy given the recent enactment of SFRA.

Id. at 617. As a result, we "direct[ed] the Commissioner to

comply with the Board's final decision and proceed forthwith to

design and perform a needs assessment of each of the Bacon

districts . . . and . . . to further determine whether . . .

[SFRA's] remedial measures afford students in the Bacon

districts" a thorough and efficient education. Id. at 618.

In compliance with our directive, the Department designed

and implemented a comprehensive, multi-phased needs assessment

in 2008. The needs assessments culminated in a report issued by

7 A-2452-14T1

the Commissioner on September 14, 2009. The report consisted of

sixteen individualized assessments of each of the Bacon

districts that summarized the results of site visits, evaluated

the adequacy of the facilities, evaluated the effect of SFRA on

the district's funding, and provided conclusions and

recommendations for each district.

As directed by the Board, the needs assessments focused on

the unique issues that affected each individual district at that

time. With respect to SFRA, the assessments detailed the amount

of aid that each district actually received for fiscal year

(FY)08-09, the anticipated level of funding for FY09-10, and how

the districts intended to use the funding. Notably, the needs

assessment lacked a global statement about all of the Bacon

districts or whether fully funding SFRA would provide the Bacon

district students with a thorough and efficient education.

Pursuant to Rule 2:4-1(b) and Bacon, supra, 398 N.J. Super.

at 619, plaintiffs could have appealed the needs assessments.

However, no appeal was filed.

The State reduced SFRA funding for the 2011 fiscal year.

Abbott v. Burke, 206 N.J. 332, 344-46 (2011) (Abbott XXI). On

September 2, 2011, the districts that had appealed the Board's

decision to this court filed a motion to enforce litigants'

rights pursuant to Rule 1:10-3, seeking an order directing that

8 A-2452-14T1

the Bacon districts receive full funding under SFRA. In a

January 12, 2012 order, we denied the motion because "[t]he

specific relief requested on this motion to enforce litigant's

rights . . . [was] neither encompassed nor contemplated in our

[previous] decision . . . ." We further stated:

To the extent movants' instant application

seeks redress from the September 14, 2009

final administrative decisions of the

Commissioner . . . as inconsistent with, or

violative of, the Bacon holding, their

recourse was a direct appeal therefrom

. . . . To the extent movants seek[] to

enforce, or compel compliance with, any

aspect of the September 14, 2009

administrative agency determinations, their

recourse is by way of summary proceeding

pursuant to Rule 4:67-6.[3]

Plaintiffs took no further action until approximately

September 8, 2014 when fifteen of the original twenty Bacon

districts filed a verified complaint and order to show cause

under Rule 4:67-6 in the Law Division. Plaintiffs framed the

complaint as:

an action to enforce final determinations by

[the Department] . . . that the funding and

high quality preschool provided by [SFRA],

along with facilities improvements and other

measures, will afford students in [Bacon]

districts a thorough and efficient education

. . . remediating the constitutional

violation found by [the Board] and upheld by

3

On May 7, 2012, the Supreme Court denied plaintiffs' petition

for certification from this order. Bacon v. N.J. State Dep't of

Educ., 210 N.J. 218 (2012).

9 A-2452-14T1

the Superior Court, Appellate Division

. . . .

The relief sought by plaintiffs was broad. Plaintiffs

requested an order directing the Department to (1) calculate the

aid that would be provided to the Bacon districts under SFRA for

the 2014-15 school year and subsequent years, send those

calculations to the Legislature, "and seek supplemental

appropriations as may be necessary to ensure the provision of

necessary funding"; (2) calculate the preschool aid that the

Bacon districts would receive under SFRA to allow them "to

implement high quality preschool for all three- and four-year

olds . . . no later than the 2019-20 school year"; (3)

"[d]evelop and implement district-specific plans for facilities

improvements and financing as may be necessary and consistent

with the Educational Facilities Construction and Financing Act

(EFCFA), N.J.S.A. 18A:7G-1 et seq., commencing in the 2015-16

school year"; (4) "[u]ndertake such other district-specific

remedial measures as identified in the 2009 assessments or as

otherwise necessary to ensure the effective and efficient use of

funds in the districts' budgets;" (5) "[a]ward attorneys' fees

to [plaintiffs] pursuant to N.J.S.A. 10:6-2[(f)]"; and (6) grant

plaintiffs "[s]uch other relief as the [c]ourt may deem

appropriate and necessary to ensure remediation of the

constitutional violation found in this litigation."

10 A-2452-14T1

On November 7, 2014, the Department filed a motion to

dismiss the complaint for failure to state a claim. The trial

judge granted the Department's motion on December 15, 2014.

In her oral decision, the judge focused on whether

plaintiffs could use a Rule 4:67-6 summary proceeding to obtain

their requested relief. She characterized plaintiffs' requested

relief as "sweeping," and expressed concern about the limited

record in this case compared to the records before the Supreme

Court in the Abbott cases, specifically Abbott XXI.

With respect to the procedural issue, the judge noted that

Rule 4:67-6 is a "very narrow rule" that was "never intended to

supplant other jurisdictional exercises by [S]tate agencies."

Specifically, the judge highlighted that "there was never any

finding as to what level of funding under SFRA was essential to

provide a [thorough and efficient education] in [the Bacon]

districts" in the 2009 needs assessments. The judge further

noted that the needs assessments lacked "directory language," an

"omnibus order," or a global conclusion "that full funding of

SFRA is necessary for a thorough and efficient education in each

one of the Bacon districts." As a result, the judge determined

that a summary proceeding under Rule 4:67-6 was not an

appropriate vehicle to obtain plaintiffs' requested relief and

11 A-2452-14T1

granted the Department's motion to dismiss. This appeal

followed.

II.

We employ a plenary standard of review over a trial court's

decision to grant a Rule 4:6-2(e) motion to dismiss for failure

to state a claim upon which relief can be granted. Rezem Family

Associates, L.P. v. Borough of Millstone, 423 N.J. Super. 103,

114 (App. Div.), certif. denied, 208 N.J. 366 (2011). The

narrow issue presented in this case is whether plaintiffs

properly brought this action under Rule 4:67-6(a)(2). For the

following reasons, we conclude they did not and that therefore

the trial judge properly dismissed plaintiffs' complaint.

Under Rule 4:67-6, an administrative agency or a non-agency

party can institute a summary proceeding in Superior Court to

enforce an agency order. If the plaintiff is a non-agency

party, then the rule applies to "all such enforcement actions

brought by a party to the administrative proceeding in whose

favor a written order or determination was entered affording

that party specific relief." R. 4:67-6(a)(2). (emphasis added).

Rule 4:67-6 exists "to provide judicial remedies in aid of

agency orders where necessary." In re A-1 Jersey Moving &

Storage, Inc., 309 N.J. Super. 33, 40 (App. Div. 1998).

Additionally, parties cannot challenge the validity of an

12 A-2452-14T1

administrative order collaterally in a Rule 4:67-6 proceeding.

State Dep't of Envtl. Prot. v. Mazza & Sons, Inc., 406 N.J.

Super. 13, 23 (App. Div. 2009).

We have observed that Rule 4:67-6 enforcement actions are

analogous to "a motion for enforcement of litigant's rights

under Rule 1:10-3 in a judicial proceeding." Mazza, supra, 406

N.J. Super. at 29 (citing State Farm Mut. Auto. Ins. Co. v.

State of N.J., Dep't of Pub. Advocate, 118 N.J. 336, 344

(1990)). "The scope of relief in a motion in aid of litigants'

rights is limited to remediation of the violation of a court

order." Abbott XXI, supra, 206 N.J. at 371. Because Rule 4:67-

6 is the administrative counterpart to Rule 1:10-3, the scope of

relief that can be afforded to a party instituting a summary

enforcement action is similarly limited.

To be successful in pursuing a summary action under Rule

6:67-6, a litigant must show that there is a "specific and

unequivocal" order in place. Abbott v. Burke, 170 N.J. 537, 565

(2002) (Abbott VII) (LaVecchia, J., concurring in part and

dissenting in part). The order must afford the enforcing party

"specific relief." R. 4:67-6(a)(2). The litigant must also

show that the State agency "has failed to comply with the order

and that the court's assistance is necessary to secure

compliance." Mazza, supra, 406 N.J. Super. at 29.

13 A-2452-14T1

Applying these principles, we conclude that plaintiffs'

complaint failed to state a claim upon which relief could be

granted in a summary proceeding under Rule 4:67-6(a)(2). No

"written order or determination" was entered in their favor that

afforded them the "specific relief" they sought in their

complaint.

In their complaint, plaintiffs described the individual

September 14, 2009 needs assessments as "final determinations"

by the Department

that the funding and high quality preschool

provided by [SFRA], along with facilities

improvements and other measures, will afford

students in [the Bacon] districts a thorough

and efficient education . . . thereby

remediating the constitutional violation

found by [the Board] and upheld by the

Superior Court, Appellate Division . . . .

However, the structure of the needs assessments themselves belie

plaintiffs' arguments. The needs assessments consist of sixteen

distinct reports that focus on sixteen individual districts.

There is no overall report that draws conclusions about the

state of the Bacon districts as a group. To the contrary, as

the Board directed, the needs assessments attempt to identify

the unique issues that each district faced back in 2009.

The following examples illustrate the point. In the

Lawrence School District Needs Assessment, the Department

focused on the issues presented by that district's small size

14 A-2452-14T1

and recommended that the district pursue regionalization. On

the other hand, the Lakewood School District Needs Assessment

addressed the effect that the district's policy of courtesy

busing non-public school students had on its finances and

recommended that the policy be reconsidered. In the Buena

Regional Needs Assessment, the Department stated that the

district "must address the high personnel costs and loss of

productivity that results from teachers spending so little time

on instructional activities . . . ." The needs assessments for

the remaining districts set forth other district-specific

recommendations.

In spite of the fact that the sixteen needs assessments

sought individualized solutions to each district's unique

issues, plaintiffs requested sweeping, identical relief for all

of the Bacon districts. It is undisputed that the needs

assessments evaluated the effect of SFRA. However, plaintiffs

mischaracterize the import of those recommendations. In some of

the assessments, the Department identified that SFRA funding

would have a positive effect on the district. For example, in

the Lawrence School District Assessment, the Department noted

that:

although the SFRA and complementary

legislation . . . provide the tools that

will permit [the district] to improve

educational opportunities for its students

15 A-2452-14T1

and address its identified needs, the

extremely small size of the school district

poses significant challenges . . . .

Regionalization . . . will be critical to

addressing those challenges in this

district.

On appeal, plaintiffs attempt to extrapolate this statement

to apply to all the Bacon districts. However, the Department

did not reach similar conclusions for all of the Bacon

districts. Thus, there was no "specific order" that could be

enforced for all of the Bacon districts.

In the needs assessments, the Department's final

conclusions can be roughly grouped into three general

categories: (1) SFRA funding will continue to improve

educational opportunities; (2) SFRA funding will continue to

improve educational opportunities but regionalization may be

necessary; or (3) the district needs to better utilize available

funds. The recommendations of the needs assessments follow the

Board's original conclusion that the Bacon districts have

different needs and will ultimately require different solutions

than the Abbott districts.

Significantly, none of the needs assessments concluded that

fully funding the SFRA is necessary to ensure that students in

the Bacon districts receive a thorough and efficient education.

The needs assessments do not require the Department or the

Legislature to fully fund the districts under SFRA, or institute

16 A-2452-14T1

specific pre-school programs or building projects in the

districts.

Plaintiffs argue that the needs assessments are enforceable

because in Bacon, supra, 398 N.J. Super. at 618, we instructed

the Department "to further determine whether, in light of the

proven educational deficits already found by the Board, the

[SFRA's] remedial measures afford students in the Bacon

districts the thorough and efficient education to which they are

constitutionally entitled." According to plaintiffs, because

the Department was instructed on remand to use the needs

assessments to determine whether SFRA would remediate the

constitutional violation, the conclusions and recommendations in

the needs assessments are enforceable as an agency order.

However, as noted above, the needs assessments lack clear

findings about the remedial effect of the SFRA on the

constitutional violations that the Board originally identified.

If the Department failed to comply with our directive in Bacon,

supra, that the Commissioner determine whether SFRA provided the

Bacon districts with a thorough and efficient education,

plaintiffs' appropriate recourse was an appeal of the needs

assessments. While plaintiffs assert that "[i]n plain and

unequivocal language, [the Department] determined that the SFRA

provides adequate funding . . . to ensure the Bacon students

17 A-2452-14T1

[receive] a thorough and efficient education," that language is

not found in the needs assessments. The plain language of the

needs assessments cannot be construed as an administrative order

in plaintiffs' favor entitling them to full SFRA funding or any

of the broad relief sought in their complaint.

Furthermore, the needs assessments contain no directives.

As noted by the trial judge, the needs assessments lack an

"omnibus order." In a Rule 4:67-6 proceeding, the trial court's

powers are strictly limited to enforcement of an order. See

Mazza, supra 406 N.J. Super. at 23 (trial court cannot rule on

the validity of an agency order in a Rule 4:67-6 proceeding).

Without any directives or an omnibus order, there was nothing

for the trial court to enforce and plaintiffs' complaint was

therefore properly dismissed.

Plaintiffs make two additional arguments. First, they

assert their complaint was properly filed under Rule 4:67-6

because, in our January 12, 2012 order, we "instuct[ed]" them to

proceed in this fashion. We disagree. Contrary to plaintiffs'

assertion, the January 12, 2012 order was not an "instruction"

by this court to file a summary action under Rule 4:67-6, nor a

guarantee that any such action, if pursued, would be successful.

Instead, we simply made clear that plaintiffs' motion for an

order in aid of litigants' rights lacked merit.

18 A-2452-14T1

Plaintiffs also argue for the first time in their reply

brief that we should exercise our original jurisdiction in this

matter pursuant to Rule 2:10-5; declare that the Department has

violated New Jersey's Constitution by failing to ensure that

plaintiffs all receive full SFRA funding; and implement specific

remedies concerning future funding. We again disagree.

We generally decline to consider arguments raised for the

first time in a reply brief. L.J. Zucca, Inc. v. Allen Bros.

Wholesale Distribs. Inc., 434 N.J. Super. 60, 87 (App. Div.

2014) (citing Borough of Berlin v. Remington & Vernick Eng'gs,

337 N.J. Super. 590, 596 (App. Div.), certif. denied, 168 N.J.

294 (2001)), certif. denied, 218 N.J. 273 (2014). By failing to

raise their original jurisdiction argument in their initial

brief, plaintiffs have waived this contention.

Moreover, we exercise our original factfinding authority

under Rule 2:10-5 only "with great frugality and in none but a

case free of doubt." Tomaino v. Burman, 364 N.J. Super. 224,

234-35 (App. Div. 2003) (quoting In re Boardwalk Regency Corp.

Casino License Application, 180 N.J. Super. 324, 334 (App. Div.

1981), modified on other grounds, 90 N.J. 361 (1982)), (internal

quotation marks omitted), certif. denied, 179 N.J. 310 (2004).

This is not such a case. The record is wholly inadequate to

allow us to exercise our original fact-finding authority to

19 A-2452-14T1

review plaintiffs' claim that they are entitled to specific

levels of funding under SFRA.

Affirmed.

20 A-2452-14T1