# Abbott Ex Rel. Abbott v. Burke

> Supreme Court of New Jersey · May 24, 2011 · 206 N.J. 332

URL: https://www.frixlaw.com/law-library/cases/9863044

## Case

- **Full name:** 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
- **Court:** Supreme Court of New Jersey
- **Decided:** May 24, 2011
- **Citations:** 206 N.J. 332; 20 A.3d 1018; 2011 N.J. LEXIS 616
- **Precedential status:** Published
- **Opinion:** Dissent by Rivera-Soto
- **Judges:** Lavecchia, Albin, Stern, Rivera-Soto, Hoens, Rabner, Long
- **Cited by:** 57 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9863044

## How later opinions describe it (automated extraction)

- explaining a motion to enforce litigant's rights "is [the] appropriate vehicle for a party who alleges a violation of a judgment"
- stating "a litigant typically does not have A-5423-18 40 standing to assert the rights of third parties"
- stating "a litigant typically does not have standing to assert the rights of third parties"

## Opinion text

Justice RIVERA-SOTO,
dissenting.
This motion in aid of litigants’ rights should be denied for the substantive reasons elegantly and cogently expressed in the separate dissenting opinion of Justice Hoens and in which I join. I write separately, however, to underscore a procedural concern today’s decision glaringly brings to the fore. First, some context.
I.
Starting with Robinson v. Cahill, 62 N.J. 473 , 303 A.2d 273 (1973), this Court embarked on an initially well-intentioned but *484 now fundamentally flawed and misguided approach to addressing the New Jersey Constitution’s promise that “[t]he Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years.” N.J. Const. art. VIII, § IV, ¶ 1.
After a number of fits and starts, interspersed with seemingly endless litigation, in 2008 the Legislature adopted, and the Governor signed into law the School Funding Reform Act of 2008 (SFRA), N.J.S.A. 18A:7F-43 to -68. Two years ago, in gauging the constitutionality of the then recently enacted SFRA, this Court determined that “SFRA satisfies the requirements of the thorough and efficient clause of Article VIII, section 4, paragraph 1 of the New Jersey Constitution and that the funding formula may be implemented in the Abbott districts,” thereby leading the Court to “reliev[e] the State from this Court’s prior remedial orders concerning funding to the Abbott districts,” Abbott v. Burke, 199 N.J. 140, 175 , 971 A.2d 989 (2009) (Abbott XX). 1 As Abbott XX recognized, SFRA represented a sea change in how *485 New Jersey endeavored to provide the constitutionally required “thorough and efficient system of free public schools[.]” N.J. Const. art. VIII, § IV, ¶ 1. It did so by “enacting] a funding formula that is designed to achieve a thorough and efficient education for every child, regardless of where he or she lives[,]” Abbott XX, supra, 199 N.J. at 175 , 971 A.2d 989 . At its core, SFRA operates by reaching certain funding milestones in a reasoned, thoughtful and informed manner, and then “grossing up” those milestones to provide yet additional funding comfort.
In Abbott XX , this Court held that the SFRA funding process was constitutional but, foreshadowing the economic crisis that shortly thereafter would engulf our entire Nation, it acknowledged that “[t]here is no absolute guarantee that SFRA will achieve the results desired by all.” Ibid. Mindful of that concern, the Court took care to emphasize that “[t]he political branches of government, however, are entitled to take reasoned steps, even if the outcome cannot be assured, to address the pressing social, economic, and educational challenges confronting our state.” Ibid. (emphasis supplied). The Court concluded that the executive and legislative branches “should not be locked in a constitutional straitjacket” and that “SFRA deserves the chance to prove in practice that, as designed, it satisfies the requirements of our constitution.” Ibid.
II.
That context informs today’s decision where, by a 3-to-2 vote, this Court grants relief in aid of litigants’ rights. It is critical to re-emphasize that, procedurally, this matter is before the Court not as a petition for certification or any other application on appeal, but, specifically, as a motion. Although the Rules of Court explicitly define how many judges of the Appellate Division are required to grant a motion, 2 the Rules are silent as to the number of Justices needed to grant motion relief. That silence is particu *486 larly poignant, as the Rules specifically provide that less than a majority of the Justices—only three—are required to vote affirmatively in order to grant a petition for certification, the vehicle by which the overwhelming majority of appeals arrive at this Court. See R. 2:12-10 (providing that “[a] petition for certification shall be granted on the affirmative vote of 3 or more justices”).
As a result and particularly in the context of a Court constituted by fewer than its full compliment of seven, the requirements for granting a motion before this Court have been the subject of extensive internal discussion and have evolved as a matter of practice. Based on those discussions and evolution, the rule of practice in fact and consistently applied in this Court has been that, to be granted, a motion requires the affirmative vote of four, regardless of the number of Justices voting. Although unwritten, that practice is borne out by the relevant empirical data. In the period between June 24, 1987 and April 11, 2011, this Court determined and ruled in a total of 38,170 motions, 3 of which between one-half and two-thirds were determined administratively. 4 Of the remaining motions decided by the Court, 3,736 motions were determined by a less-than-unanimous vote; of those, *487 forty-seven, or 1.25 percent, were decided by a five-member Court, and of those forty-seven, all of four—or one-one hundredth of one percent (0.01%) of all motions decided, one-one tenth of one percent (0.1%) of non-unanimously-decided motions, and barely 8.5 percent of the far smaller subset of all non-unanimous motions decided by a five-member Court—were granted by a 3-to-2 margin. 5
Tellingly, not one of the motions that were granted by a 3-to-2 margin was a dispositive motion, but instead were motions seeking only interim procedural relief: they consisted of two motions seeking a stay, 6 one motion applying for bail during the pendency of an appeal, 7 and one motion seeking leave to file as within time. 8
In stark contrast, the matter presently before the Court is of a radically and fundamentally different species than those everyday motions seeking interim procedural relief either by way of a stay, bail pending appeal, or leave to file as within time. As a practical matter, plaintiffs’ motion in aid of litigants’ rights seeks a disposition on the merits: the relief it requests is to have the State of New Jersey held in contempt for failing to fund the State’s system *488 of public education in strict accordance with SFRA. 9 That fact is made patent by no less a source than plaintiffs’ notice of motion that triggered this dispute, which sought mandatory relief in the form of an order from this Court “enjoining the State defendants from ... providing State school funding aid to New Jersey school districts for 2010-11 that is less than the aid levels required by the provisions of [SFRA.]” 10
That application—one that seeks to hold the State and its constitutional officers in contempt unless an additional $1.74 billion is earmarked for school funding—is of a character so different from the tiny group of garden-variety motions this Court has granted on a 3-to-2 margin that it is simply incomprehensible that any impartial observer would give them equal dignity. The matters at issue here—and the resulting constitutional clash that will arise from this Court ordering additional public school district funding the 3-to-2 majority studiously avoids quantifying, yet which likely will approach $1 billion, a sum admittedly absent from the State’s treasury—demand of this Court far more than simply *489 ignoring overwhelming practice and granting substantive relief for the temporary advantage of issuing relief on a customarily insufficient 3-to-2 vote. New Jersey’s citizenry and the blueprint of government that is our State Constitution deserve more, much more.
III.
Even if the issuance of relief on a 3-to-2 margin is appropriate in respect of this motion, the facts underlying the motion cry out for the exercise of judicial restraint—or, better yet, judicial humility—that should be the hallmark of every decision of this Court. In light of the majority’s unspoken but nonetheless clear assumption that one constitutional right must predominate over another, prudence dictates that when, as here, the effect of that choice is fiscal suicide that becomes the catalyst of a crisis of constitutional proportions, the proper course for this Court is to heed the State’s reasonable request and stay its hand. Otherwise, this Court risks entering an area better suited to the genre of fantasy: how can one have SFRA-defined fully funded public school districts when, given limited funds, that result only can come at the expense of other equally constitutionally worthy items or categories? In that respect, we are well-served to remember that the Constitution “is not a suicide pact[,]” Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 , 83 S.Ct. 554, 563 , 9 L.Ed.2d 644, 656 (1963); Haig v. Agee, 453 U.S. 280, 309-10 , 101 S.Ct. 2766, 2783 , 69 L.Ed.2d 640, 664 (1981) (same); Aptheker v. Secretary of State, 378 U.S. 500, 509 , 84 S.Ct. 1659, 1665 , 12 L.Ed.2d 992, 999 (1964) (same), a recognized principle of constitutional adjudication New Jersey likewise has embraced. State v. Golotta, 178 N.J. 205, 221 , 837 A.2d 359 (2003) (holding that “the Constitution ‘is not a suicide pact[,]’ ” (quoting Kennedy, supra)); State v. Jahr, 114 N.J.Super. 181, 186 , 275 A.2d 461 (Law Div.1971) (same).
IV.
I add only the following. The rejoinder on the reasoning and factual underpinnings of this dissent by those who proclaim victo *490 ry by a 3-to-2 margin, ante at 371-76, 20 A.3d at 1043-45, has precious little to do with the rationale of this dissent and everything to do with the result they reach. As well-intentioned as they may be, however, they proceed at the peril of faffing to respect the primacy of our established procedures. Those long-established practices and procedures, forged on the anvil of time and careful consideration, command that motions are not carried by a simple majority but require the affirmative vote of four.
By abandoning that time-honored practice today, regardless of the reasons for that choice, they leave unexplained why, over time, others were denied relief on motion because they failed to gamer the up-until-now required four votes. At a minimum, an explanation is due and owing from those who today discard our well-established rule of practice. 11
*491 V.
When, with the perspective of time seasoned by thoughtful and reasoned deliberation, the scales of justice are calibrated in respect of this motion and its disposition, the result observed will not be true to any fair system of weights and measures; this Court will have placed its not inconsiderable thumb on those scales and thus skewed the results. Further, when, as here, there is grave doubt concerning the propriety of a procedural maneuver employed, it ill-becomes the Judiciary—the unelected branch of government—to engage in an unseemly power-grab under the guise of unnecessary constitutional adjudication. Far greater virtue lies in allowing the political branches of government—those directly elected by the citizenry to give voice to their views—to engage in a democratic discourse and seek solutions consonant with their constitutional obligations. Because, in my view, this Court usurps that choice and errs grievously in employing a proeedurally suspect means to ramrod a billion dollar remedy this State can ill-afford, I must dissent.
Although commonly referred to as Abbott XX , that opinion in fact is the twenty-first time this Court has issued a reported decision in this now more than a quarter-century-old litigation. See (1) Abbott v. Burke, 100 N.J. 269 , 495 A.2d 376 (1985); (2) Abbott v. Burke, 119 N.J. 287 , 575 A.2d 359 (1990); (3) Abbott v. Burke, 136 N.J. 444 , 643 A.2d 575 (1994); (4) Abbott v. Burke, 149 N.J. 145 , 693 A.2d 417 (1997); (5) Abbott v. Burke, 153 N.J. 480 , 710 A.2d 450 (1998); (6) Abbott v. Burke, 163 N.J. 95 , 748 A.2d 82 (2000); (7) Abbott v. Burke, 164 N.J. 84 , 751 A.2d 1032 (2000); (8) Abbott v. Burke, 170 N.J. 537, 790 A.2d 842 (2002); (9) Abbott v. Burke, 172 N.J. 294 , 798 A.2d 602 (2002); (10) Abbott v. Burke, 2003 N.J. LEXIS 461 (N.J. Apr. 29, 2003); (11) Abbott v. Burke, 177 N.J. 578 , 832 A.2d 891 (2003); (12) Abbott v. Burke, 177 N.J. 596 , 832 A.2d 906 (2003); (13) Abbott v. Burke, 181 N.J. 311 , 857 A.2d 173 (2004); (14) Abbott v. Burke, 182 N.J. 153 , 862 A.2d 538 (2004); (15) Abbott v. Burke, 185 N.J. 612 , 889 A.2d 1063 (2005); (16) Abbott v. Burke, 187 N.J. 191 , 901 A.2d 299 (2006); (17) Abbott v. Burke, 196 N.J. 348 (2006) (inadvertently withdrawn from bound volume but reposted at 203 N.J. 157 , 1 A.3d 602 (2006)); (18) Abbott v. Burke, 193 N.J. 34 , 935 A.2d 1152 (2007); (19) Abbott v. Burke, 196 N.J. 451 , 956 A.2d 923 (2008); (20) Abbott v. Burke, 196 N.J. 544 , 960 A.2d 360 (2008); (21) Abbott v. Burke, 199 N.J. 140 , 971 A.2d 989 (2009). Applying that rather straightforward methodology and for accuracy’s sake, this decision should be designated as Abbott XXII.
R. 2:8-1(c) (providing that "[u]nless the court otherwise directs, all motions in the Appellate Division shall be decided by a single judge except that motions *486 for bail, stay of any order or judgment, summary disposition, and leave to appeal shall be decided by a panel of at least two judges. Insofar as practicable, motions for reconsideration and motions for counsel fees for work performed in the Appellate Division shall be decided by the judges who decided the original matter.").
The Clerk of the Supreme Court advises that, because data concerning motions prior to June 24, 1987 was not maintained electronically, the task of compiling information for prior to that date would be overwhelming. Although data concerning the entire universe of motions decided by this Court after it was constituted pursuant to the 1947 Constitution would represent the most complete survey, a sample size spanning almost twenty-four years and over 38,000 motions appears sufficiently significant.
Data concerning Court Terms prior to 1994 is unavailable due to recordkeeping limitations. However, for the 1994-to-2006 Court Terms, there were a total of 18,877 motions filed. Of these, 11,748 or 62.2% were decided administratively, while 7,126 or 37.8% were decided by the Court. The trend of the earlier *487 decisions was more weighted towards a 50-50 split; more recently, the trend has been towards a two-thirds-administratively-determined/one-third-Court-decided split.
It is ironic that, of the forty-five non-unanimous motions decided by a five-member Court, thirteen, or almost twenty-nine percent, have been in the seemingly never-ending Abbott litigation; of those five-member non-unanimous-Court-granted Abbott motions, none—not one—was granted by less than a 4-to-1 vote.
Marchell v. Marchell, M-1672-88, stay pending accelerated appeal granted (July 13, 1989); In re the Contest of the November 8, 2005 General Election for the Office of Mayor of the Township of Parsippany-Troy Hills, M-558-06, stay pending appeal granted (Dec. 12, 2006).
State v. Kingsberry, M-908-90, bail pending appeal granted (Apr. 5, 1991).
Ballinger v. Delaware River Port Auth., M-589-01, motion for leave to file as within time granted (Jan. 23, 2002).
In New Jersey’s jurisprudential regime, the underlying application brought by plaintiffs—a motion in aid of litigants’ rights—is a species of contempt and is codified in the same Rule as governs contempt proceedings. Compare R. 1:10-1 (addressing direct contempt), and R. 1:10-2 (addressing indirect contempt) with R. 1:10-3 (providing that "[njotwithstanding that an act or omission may also constitute a contempt of court, a litigant in any action may seek relief by application in the action"). See also Pressler & Vemiero, Current N.J. Court Rules, Comments 4.4.1 and 4.4.2 to R. 1:10-3 (2011) (noting that "sanctions under R. 1:10-3 are intended to be coercive, not punitive” but that "[w]hile monetary penalties are the more usual method by which the court attempts to compel compliance, incarceration may be ordered”).
Plaintiffs titled their application as a "notice of motion in aid of litigants’ rights[,]" stated that the application was brought "pursuant to R. 1:10-3 and R. 2:8-1,” and also included a request that the State be enjoined from “conducting the review of the SFRA formula and its operative parts and making recommendations to the Legislature [pursuant to SFRA] until such time as the State can demonstrate that the formula has been fully implemented as intended, designed and enacted.” Plaintiffs have abandoned that latter request, leaving only their request that the State be ordered to fund fully the public school districts in strict accord with SFRA.
A different, but corollary consideration also is implicated by today’s substantive determination of a dispositive motion by a 3-to-2 margin. In acting as it has, this Court has abandoned the salutary practice of unanimity almost universally followed by courts of last resort: they often have spoken through unanimous rulings in contentious cases in order to avoid likely criticism and, more to the point, to encourage compliance. Indeed, that practice has been the hallmark of the more controversial of our own Abbott cases, starting with the first one. See Abbott v. Burke, 100 N.J. 269 , 495 A.2d 376 (1985) (6-0 vote); Abbott v. Burke, 119 N.J. 287 , 575 A.2d 359 (1990) (7-0 vote); Abbott v. Burke, 136 N.J. 444 , 643 A.2d 575 (1994) (7-0 vote); Abbott v. Burke, 153 N.J. 480 , 710 A.2d 450 (1998) (7-0 vote); Abbott v. Burke, 163 N.J. 95 , 748 A.2d 82 (2000) (6-0 vote); Abbott v. Burke, 164 N.J. 84 , 751 A.2d 1032 (2000) (5-0 vote); Abbott v. Burke, 2003 N.J. LEXIS 461 (N.J. Apr. 29, 2003) (5-0 vote); Abbott v. Burke, 177 N.J. 578 , 832 A.2d 891 (2003) (5-0 vote); Abbott v. Burke, 181 N.J. 311 , 857 A.2d 173 (2004) (5-0 vote); Abbott v. Burke, 182 N.J. 153 , 862 A.2d 538 (2004) (6-0 vote); Abbott v. Burke, 185 N.J. 612 , 889 A.2d 1063 (2005) (7-0 vote); Abbott v. Burke, 187 N.J. 191 , 901 A.2d 299 (2006) (7-0 vote); Abbott v. Burke, 193 N.J. 34 , 935 A.2d 1152 (2007) (7-0 vote); Abbott v. Burke, 196 N.J. 451 , 956 A.2d 923 (2008) (6-0 vote); Abbott v. Burke, 196 N.J. 544 , 960 A.2d 360 (2008) (5-0 vote); Abbott v. Burke, 199 N.J. 140 , 971 A.2d 989 (2009) (5-0 vote). The notion that unanimity—or something akin to it—is a jurisprudentially sound goal in controversial cases also has been followed in so-called "blockbuster" cases in the Supreme Court of the United States. See, e.g., Brown v. Board of Education, 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954) (unanimously ordering school desegregation and holding unconstitutional "separate but equal" policy); United States v. Nixon, 418 U.S. 683 , 94 S.Ct. 3090 , 41 L.Ed.2d 1039 (1974) (unanimous *491 ly rejected sitting President’s claim of executive privilege to disclosure of Oval Office tape recordings pursuant to grand jury subpoena). That today's decision will be the source of great controversy is an understatement, which additionally militates against the extreme action today taken.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9863044. Public record. Not legal advice.