Appendix — Klein v. Robinson

v4 5 - 2 9 1 Supreme Court, U. &

FILED

IN THE SUPREME COURT

OF THE UNITED STATES AUG 21 1975

DOCKET NO, 75-291

MICHAEL RODAK, JR., CLERK

HERBERT C, KLEIN,

’ Petitioner,

VS.

KENNETH ROBINSON, et al.,

Respondents,

APPENDIX TO PETITION

FOR A WRIT OF CERTIORARI

=

HERBERT C, KLEIN

Member of the New Jersey

Assembly, District 34

Pro Se

663 Main Avenue

Passaic, New Jersey 07055

SUPREME COURT OF NEW JERSEY

A-104 September Term 1974

KENNETH ROBINSON, an infant, by

his parent and guardian ad litem,

ERNESTINE ROBINSON, et al.

Plaintiffs-Respondents,

Ve

WILLIAM T. CAHILL, Governor of

the State of New Jersey, et al.

Defendants-Appellants,.

~~ _— ~— 4 ~~ a ~~

Argued March 18, 1975 -- Decided

May 23, 1975

On appeal from Superior Court, Law

Division; on rehearing as to remedy,

The opinion cf the Court was delivered

by HUGHES, C.J.

The Court has now come face to face

with a constitutional exigency involving,

on a level of plain, stark and unmistakable

reality, the constitutional obligation of

ole

TABLE OF CONTENTS

Majority Opinion, Robinson v, Cahill,

67 N.J. 33; 339A2d 193

CRDTS) cocccceceesecse 1

Footnotes to Majority Opinion......... 45

Dissenting Opinion of

Justice Pashman..,....s.+. 49

Footnotes to Dissent of Pashman, J.... 95

Dissenting Opinion of Justices

Mountain and Clifford....... 105

Footnotes to Disserting Opinion

of Justices Mountain and Clifford..... 132

Order of Supreme Court of

New Jersey granting Petitioner

leave to Sash 66660000006060000060688 134

the Court to act. Having previously

identified a profound violation of consti-

tutional right, based upon default in a

legislative obligation imposed by the

organic law in the plainest of terms, | we

have more than once stayed our hand, with

appropriate respect for the province of

other Branches of government. In final

alternative, we must now proceed to en-

forced the constitutional right involved,

The compulsion upon the Court to act

in the present state of affairs is evident

The people's constitutional

reposition of power always carries

with it a mandate for the full and

responsible use of that power.

When the organic law reposes legis-

lative power in that branch, for

instance, it is expected that such

power will be used, lest it wither

and leave the vacuum of a constitu-

tional exigency, requiring another

branch (however reluctantly)

ofe

to exercise, or project the

exercise of, that unused power for

the necessary vindication of the

constitutional rights of the people.

Robinson v., Cahill, 62 N.J. 473 (1973)

cert. den, sub nom, Dickey v.

Robinson, 414 U.S. 976, 94 S.Ct. 292,

38 L.Ed, 2d 219; Jackman v,

Bodine, 43 N.J. 453 (1964);

Asbury Park Press, Inc, v. Woolley,

33 N.J. 1 (1960). (American Trial

Lawyers v. N.J. Supreme Ct., 66

N.J. 258, 263)

-2a-

In Robinson v. Cahill, 62 N.J. 473

(1973), we held violative of the Educatim

Clause of the Constitution the existing

system of education provided public

school children in this State. We

construed the Constitution basically to

command that the State afford "an equal

educational opportunity for children"

(Id, at 513), however the burden of doing

- and we

so would be distributed and borne,

agreed with the determination of Judge

Botter (118 N.J. Super. 223, 119 N.ww

Super. 40 (Law Div, 1972)) that "the

constitutional demand had not been met **"'

on the basis of gross "discrepancies in

dollar input (expenditure) per pupil."

62 N.J. at 515. We so ruled because

a%e

dollar input "was plainly relevant and

because we (had) been shown no other

viable criterion for measuring compliance

with the constitutional mandate."" Id, at

515-16.>

Thus we considered as the principal

cause of the constitutional deficiency the

substantial reliance (under our present

system of financing eiinottent upon local

taxation, entailing as it does "discordant

correlations between the educational needs:

of the school districts and their respec-

tive tax bases." Id. at 520.

Nevertheless, although we expressed

doubt that the Constitution could be

satisfied "by reliance upon local taxatior''

(Id. at 520), we did not foreclose tiat

/

-4=—

possibility. We indicated that the State

could meet its obligation by financing,

education either on a statewide basis,

with funds provided by the State, or, in

whole or in part, by delegating the fiscal

obligation to local taxation, Id. at 509-

13. Should it choose the latter alterna-

tive, however, it would be incumbent upon

the State, either iegislatively or

administratively ''to define *** the

educational obligation and *** compel the

local school districts to raise the money

necessary to provide that (equal educa-

tional) opportunity."' Id. at 519

(emphasis in the original). If local

government fails in that endeavor "the

State must itself meet its continuing

obligation."" Id. at 513. The State aid

oSie

plan under the current statute, N.J.S.A.

18A:58-4 (L. 1970, c. 234, hereafter the

1970 Act), was found inadequate because

"not demonstrably designed to guarantee

that local effort plus the State aid will

yield to all the pupils in the State that

level of educational opportunity wh:ch the

*#kk (Constitution) mandates."" Id. at 519.

We concluded our opinion by ruling that

relief would be prospective in nature, and

we invited argument as to whether, pending

legislative action, the judiciary could

properly order redistribution of "minimum

support" and "save-harmless" aid, infra,

differently from the provisions of exis-

ting law, in furtherance of the constitu-

tional imperative as the trial court had

=6<

directed, Id, at 520-21; see 118

N.J. Super. at 280-81.

After hearing the parties and the

amici (and pausing in deference to the

doctrine of separation of powers in

government), we decided that the statu-

tory scheme would not be disturbed unless

the Legislature failed by December 31,

1974, to enact legislation compatible with

the Constitution and to be effective as of

July 1, 1975. Robinson v, Cahill, 63 N.J.

196, 198 (1973). We withheld a ruling as

to whether, if such legislation were not

adopted, "the Court (might) order the

distribution ad appropriated moneys toward

a constitutional objective notwithstanding

the legislative directions." Id.

oBe

Despite considerable efforts by both

the Executive and Legislative Branches, no

legislation was adopted by December 31,

1974, nor has been to date, although such

efforts, it is asserted, continue.

Numerous motions for intervention and

for relief and directions by the Court

were filed by various parties both before

and after December 31, 1974. On

January 23, 1975, we entered an order

denying all motions for relief or

directions and making appropriate provism

for hearing certair petitioners for inter-

vention as amici curiae. We decided that

in view of the time-exigency (and with

continued deference to the separation

powers, we must note) the Court would not

disturb the present statutory scheme for

ie

ami Bak

a oan

for the school year 1975-1976 but would any detail all the positions taken. They

receive further briefs and hear argument range from pleas by representatives of the

on March 18, 1975, concerning appropriate General Agembly and the Senate that the

remedial action by the Court in various Court continue to stay its hand, on the

suggested particulars in relation to the / postulate that a solution of the constitu-

school year 1976-1977 and subsequent yeas, tional problem is exclusively for the

looking to a "final determination as to Legislature and will one day be achieved

remedies" by the Court in sufficient time by it, to diverse proposals for the

to apprise each district by October l, present adjudication by this Cort of all

1975, what the "State aid situation will the substantive components of a thorough

be as to it, so far as practicable, for and efficient education and the financing

the school year 1976-77." thereof. They inciude proposals (which

We have received and carefully consi- are somewhat varied in nature) by plain-

dered numerous briefs and exhibits and : tiffs and by the Governor of the State

have heard extensive arguments. It is ; for redistribution of existing State aid

unnecessary for purposes of our present for at least the school year 1976-1977

disposition of the matter to outline in (in furtherance of the constitutional

-9- elie

objective) pending legislative action.

And they variously -support or criticize

quidelines propcsed by the State Depart-

ment of Educatien and recently published

in 7 New Jersey Register 132 (April 1975),

for the attainmert by school districts of

the goals of a thorough and efficient

education,

Much of the material submitted by the

parties and amici has been helpful to the

Court, and was invited by the broad terms

of the order of January 23, 1975. How-

ever, upon thorough deliberation on the

matter, we have concluded that our presert

disposition should not extend beyond the

delineation of a provisional remedy for

the school year 1976-1977 should the other

Branches of government fail to devise and

site

5 eres yee ‘SF

enact a constitutional system of educa-

tior in time for its effectuation for

that school year.

We do not now zo further for several

reasons. We continue to be hesitant in

our intrusion intc the legislative pro-

cess, forced only so far as demonstrably

required to meet tlie constitutional

exigency. As weil, it would be premature

and inappropriate for the Court at the

present posture of this complex matter to

undertake, a priori, a comprehensive

blueprint for "thorough and efficient"

education, and seek to impose it upon the

other Branches of government, Courts

customarily forbear the specification of

legislative detail, as distinguished from

stBe

their obligation to judge the constitu-

tionality thereof, until after promul-

gation by the appropriate authority.

Morrissey v. Brewer, 403 U.S. 471, 92

S.Ct. 2593, 33 L.Ed. 2d 484 (1972). We

have been as explicit as we reasonably

could as to the nature of the constitu-

tional deficiencies seen to exist in the

present system, There is no responsible

dissent from the view that implementation

of the constitutional command is peculiar-

ly a matter for the judgment of the Legis-

lature and the expertise of the Executive

Department, In other words, the Court's

function is to appraise compliance with

the Constitution, not to legislate an

educational system, at least if that can

ai%e

in any way be avoided, We have measured

and found wanting the existing scheme, No

other is yet before us for adjudication.

Nor can we adjudicate on a piecemeal or

hypothetical basis. The validity of the

tentative guidelines recently published

by the Department of Education cannot now

be passed upon, inchoate and hortatory in

nature as they are. They would have to be

considered in context with such legislative

provision as may be enacted for their fis-

cal implementation, unless the judgment

of this Court is likewise to be only

hortatory and futile in that sense,

Moreover, as already indicated, our

opinion in Robinson, 62 N.J. supra, noted

the broad options open to the Legislature

vile

in discharging the constitutional require- components of a thorough and efficient

ment. Subject to the caveats there noted system of education by formulation of

and here repeated, the selection o the standards, goals and guidelines by which

‘means to be employed belongs to the other ; the school districts and the Department

Branches of government, unimpeachable so . may in collaboration improve the quality

long as compatible with the Constitution. of the educational opportunity offered all

See, A. & B. Auto Stores of Jones St., Inc. school children. We assume that these

v. Newark, 59 NJ. 5 (1971); Ind. Elec. efforts will move forward through the

Assoc. of N.J. v. N.J. Bd. of Exam., 54 administrative process to a finality, and

N.J. 466 (1969); Burton v. Sills, 53 N.J. | that the State, through the Commissioner

86 (1968); N.J. Chapt., Am, I.P. v. NJ. of Education, will see to the prompt

State Bd. of Pref. Planners, 48 N.J. 581 implementation of the standards, so deter-

(1967); Two Guys from Harrison, Inc. Vv. mined, in the field. We would further

Furman, 32 N.J. 199 (1960). expect that any problem attendant upon

We take this occasion to state ow ; undue burdens on particular districts, in

approval of the ongoing efforts of the De- conforming to such standards, will have

partment of Education to establish.the legislative attention. But by these

-15- comments we intend no present implication

-1l6-

that any method of financing for the with the constitutional standards. We

purposes stated, which would leave the reserve such questions for the appropriate

present system of defraying the expense occasion, which hopefully will not occur,

of education substantially unaltered, We thus turn to the question of an

could fulfill the "thorough and efficient" appropriate contingent or provisional

constitutional norm. remedy for at leest the school year 1976-

What we have already said is not, of 1977. We forthwith reject the submission

course, to imply that the provisional that we should do nothing. It is past

remedy for the year 1976-1977 we herein- three years since the system was held un-

after order represents our concept of the constitutional in the Law Division. Our

full reach of our power, duty or responsi- position that the court would act at leat

bility in effectuating the promise of the for 1976-1977 was implicit in the

Constitution to the school children of January 23, 1975, order. The need for

the State should tne other Branches delay

immediate and affirmative judidal action

action beyond availability of a remedy in at this juncture is apparent, when one

time for the school year 1977-1978. Nor considers the confrontation existing

does it at all imply compliance by itself

sife

~\™

between legislative action, or inaction,

and constitutional right. When there

occurs such a legislative transgression od

a “right guaranteed to a citizen, final

decision as to the invalidity of such

action must rest exclusively with the courts.

It cannot be forgotten that ours is a

government of laws and not of men, and that

the judicial department has imposed upon

it the solemn duty to interpret the laws

in the last resort. However delicate

that duty may be, we are not a liberty to

surrender, or ignore, or to waive it."

Asbury Park Press, Inc. v. Woolley, 33

N.J. 1, 12 (1960). We have mentioned

inaction as well as action in importing

constitutional violation, for as stated

-19-

by Justice Proctor in Cooper Vv. Nutley

Sun Printing Co., Inc., 36 N.J. 189, 196

(1961) (adverting to the opinion of Chief

Justice Marshall in Marbury v. Madison, 1

Cranch 137, 163, 2 L.Ed. 60, 69 (1803)):

*kk (J)ust as the Legislature

cannot abridge constitutional

rights by its enactments, it

cannot curtail them through its

silence. *** The Judicial obli-

gation to protect the rights of

individuals is as old as this

country. (36 N.J. at 196; citations

omitted)

If then, the right of children to a

thorough and efficient system of educatim

is a fundamental right guaranteed by the

Constitution, as we have already deter-

mined, it follows that the court must

“afford an appropriate remedy to redress

a violation of those rights. To find

otherwise would be to say that our

@20-

Constitution embodies rights in a vacuum,

existing only on paper.'' Cooper V. Nutley

Sun Printing Co., Inc., supra, at 197.

We have given serious consideration to

the idea of enjoining all State aid under

the present unconstitutional system.

That recourse would simplify the weighty

problem of judicial power, as there is a

concession by all that the Court may, and

ordinarily should, enjoin the administration

of a patently unconstitutional plan. But

we are convinced that so radical a curtail-

ment of obviously essential State assis-

tance to the schocl districts and its |

consequent harmful impact on vital educational

programs, even if only for one provisional

year, is not justified at this time in the

light of all pertinent considerations.

aMle

/ The provisional remedy for the school

year 1976-1977 we have decided upon

follows, in principle if not in scope,

the proposal for redistribution of

State aid funds advocated before us by tle

Governor. The Governor's plan, presented

as "the ppropriate next step in this sign

ficant interchange between coordinate

branches,"' would enjoin the present

statutory distribution and distribute to

the school districts more conformably

to the constitutional norm the following

categories of State aid funds:

1. Minimum support aid (N.J.S.A.

18A:58-5a) ($234,000,000 as of

1974-1975) ;

2. Save-harmless funds (N.J.S.A.

18A:58-18.1} ($7,500,00 as of

1974-1975);

22

Building aid, foundation pro-

gram (N.J.S.A. 18A:58-23, 24)

($27,000,000 as of 1974-1975);

Atypical pupils aid (N.J.S.A.

18A:58-6) $64,000,000 as of

1974-1975);

Transportation aid (N.J.S.A.

18A:58-7) ($46,000,000 as of

1974-1975) ;

Pension fund contributions by

the State (N.J.S.A. 18A:66-1,

et seq.) ($172,000,000 as of

1974-1975).

Thse items aggregate about $550,000,0®

at the 1974-1975 level of appropriations,

Under the proposed State budget for 1975-

1976 those items would, for that year,

total about $585,0090,000. What they will

amount to for 1976-1977 is not yet known,

Minimum support aid provided in 1975-1976

$150 per resident weighted pupil in

operating districts. Save-harmless aid

=23<

assures every district no less aid for

current expenses and building costs than

it received in the school year 1972-1973.

The titles of the other aid categories are

self-explanatory. It is estimated that

minimum support aid for 1976-1977 would

approximate $165 per pupil.

The Governor preposes redistribution

of all such funds in accordance with the

incentive equalization aid formula of the

relevant sections of the 1970 Act (N.J.S.A.

18A:58-5b, 6.3), the operation of which was

described in our prior opinion. 62 N.J.

at 517-18. Essentially, that formula

fixes a "guaranteed" equalized assessed

valuation per weighted pupil (currently

$43,000), and if the school district's

-2h-

actual corresponding valuations per pupil

multiplied by the number of pupils there

resident is less than the guaranteed

valuations per pupil multiplied by the

Same number, the district receives State

aid to the extent of the difference,

multiplied by the net operating school

tax rate. If the actual valuations are

more than the guaranteed valuations no

formula aid is given.

The Governor's position (and to this

extent plaintiffs agree) is that the six

categories of State aid enumerated, as

presently distributed, are not compatible

with the Robinson criterion of equality

of educational resources for the pupils,

whereas the incentive qualization formula

-25-

is. He therefore urges that the whole

be redistributed solely on the basis of

the latter formula. Rough calcula-

tions offered on his behalf prior to argu-

ment purported to indicate that if applied’

for the year 1975-1976, this would have

lifted the guaranteed valuation rate per

pupil from the then existing $43,00 to

a figure ranging from $66,000 to $72,000,

depending upon the amount of appropri-

ations for that year. If applied for the

year 1976-1977 the figure would be larger

because of increasing budgets and equalized

valuations.

We are in accord with the Governor and

plaintiffs as to the effect of redistri-

bution of minimum support and save-harmless

-26-

aid in accordance with the 1970 incentive

equalization aid formula in tending to

subserve the goal of equality of educa-

tional opportunity. The gwo named items

leave existing arbitrary ratios of tax

resources per pupil unaffected, The

formula, on the other hand, in effect

places all districts whose actual equalized

valuations are below the guarantee-level

on the same per-pupil basis in respect

of supporting tax resources, The

higher the guarantee-level the more

districts come under the umbrella of such

equality. Since reallocating minimum

support and save-harmless funds to formula

aid purposes does lift the guarantee-

level, equality of supporting resources

=27<

per-pupil is fostered in that way.

We think, however, that the merits of

the attack upon the relevance of items 3,

4 and 5 mentioned above to permissible

constitutional stundards is not as manifest,

if sustainable at all, as in the case of

minimum support and save-harmless aid.

As to pension contribution aid, while

this shares the asserted and justified

characterization of the last mentioned

items, we conclude that redistribution

thereof at this juncture would be

inadvisable. We believe there would be

substantial legai and administrative

confusion as to wkere responsibility

would lie for raising employers’ pension

contributions under existing legislation

-28-

if the legislative appropriations for

that purpose were enjoined, not to mention

risks to the solvency of the Teachers’

Pension and Annuity Fund, Teacher and

pensioner morale is a pertinent factor

for consideration.

It is our order, consequently, that

for the school year 1976-1977, in the

contingency aforestated, minimum support

aid and save-harmiess funds shall not be

disbursed as provided under the existing

statutes, but shall be distributed in

accordance with the incentive equaliza-

tion aid formula of the 1970 Act. It is

estimated these funds will approximate

$290,000,000. According to calculations

furnished us by the Department of

-29-

Education, this should result, for the

year stated, in guaranteed equalized

valuations per weighted pupil of about

$67,000.

We are not insensitive to the earnest

pleas of those municipalities which will

be disadvantaged by the redistribution

here ordered because they have actual

equalized valuations per pupil exceeding

the prospective guaranteed valuations,

yet are burdened by school populations

fequiring more than average expenditures

per pupil and perhaps some degree of ex-

traordinary non-school burden (municipal

overburden). The Department of

Education has furnished us and the parties

with a schedule of the respective gains and

-30-

losses for 1976-1977 of the redistribution

here ordered, and we have carefully

weighed its effect. We have given

consideration to a variety of possible

adjustment factors, such as for municipal

overburden, which might be applied to

render this redistribution more theoreti-

cally equitable, Having regard to the

urgen necessity of announcing our dis-

position at the earliest date possible,

and the debatability, complexity and uncer-

tainty in effect of any adjustment factor

which might be so considered, we have

foregone efforts at refinement of the

approach selected,

Study of the figures discloses a broad

range of correlation between the gaining

-31-

districts and districts having higher

than statewide average school and general

tax rates (equalized) ; vice versa as to

the losing districts. (Concededly, these

correlations are not invariably uniform. )

Similarly, the gaining districts are gener-

ally the more urban areas, particularly

afflicted by municipal overburden, and

the rural districts, obviously ratables-

poor. The remedy we apply is only for one

year, and however short of a perfect plan,

is at least attainable and a positive step

toward the end result of full constitu-

tional compliance. In any case, it is

to be kept constantly in mind that our

order may be averted by timely and

adequate legislative and administrative

action.

o42«

In sum, the present disposition repre-

sents our best present judgment as to an

appropriate provisional and interim accomo-

dation of the interests of the other Branches

in their right to try to achieve accomplLlish-

ment of the mutually desired constitutional

remedy, of the interests of the school

districts in providing adequate education

in the meantime for their pupils, and of

the solemn duty of this Court to enforce

the Constitution.

In opposition to such action by the

Court as thus ordered, it has been urged

upon us on behalf of the Senate that the

"judicial power of the State does not

encompass within it the power to redis-

tribute funds appropriated by law even

=$%~

if in furtherance of a constitutional

' This conclusion is erected

objective,

upon the subordinate hypotheses (a) that

under the literal terms of the Education

Clause it is the Legislature and only the

Legislature which has the power and right

to provide for a system of thorough and

efficent education; and (b) Art. VIII,

Section 2, Paragraph 2 provides that "no

money shall be drawn from the State

Treasury but for appropriations made by

law'' and that "(a)1l moneys for the support

of State Government and for all other State

purposes as far as can be ascertained or

reasonably foreseen, shall be provided for

in one general appropriations law covering

one and the same fiscal year *** ,"

-34-

The first premise is unacceptable on

its face. The peovle in 1875 ordained the

Legislature to be their agent to effec-

tuate an educational system but did not

intend to tolerate an unconstitutional

vacuum should the Legislature default

in seeing to their specification that

the system be thorovgh and efficient. See

Asbury Park Press, Inc. v. Woolley, supra.

We have adjudicated such a default. Under

emerging modern concepts as to judicial

responsibility to enforce constitutional

right there has been no paucity of examples

of affirmative judicial action toward

such ends, Jackman v. Bodine, 43 N.J.

453 (1964); Swann v. Charlotte-Mecklenburg

Bd, of Educ., 402 U.S. .1, 91 S. Ct. 1267,

-35-

28 L.Ed. 2d 554 (1971); Griffin v.

School Bd. of Prince Edward County, 337

U.S. 218, 233-34, 84 S.Ct. 1226, 12 L.Ed.

2d 256, 266-67 (1964); Hawkins v. Shaw,

Mississippi, 437 F. 2d 1286 (5th Cir. 1971);

Kennedy Park Homes Ass'n v. Lackawanna, N.Y.,

436 F, 2d 108 (2d Cir. 1970), cert. den.

401 U.S. 1010, 91 S.Ct. 1256, 28 L.Ed. 2d

(1971); Mills v. Bd. of Educ., 348 F, Supp.

866 (D.D.C. 1972).

In the Mills case, supra, the Court held

that constitutional right, inter alia,

dictated that handicapped children were

entitled to publicly supported education

only, were insufficient to encompass the

special need, there would have to be an

equitable realloceé ion of the available

-36-

funds toward that constitutional im-

perative. Thus, in order to enforce the

Constitution, the judicial branch of the

federal government reallocated funds

differently from the. appropriation thereof

by the co-equal legislative branch of

the same sovereignty. 348 F. Supp. at

876. The principle announced is directly

apposite here.

In the Jackman case, supra, notwith-

standing that our Constitution, as construed,

authorized the Legislature to initiate

the machinery for constitutional reform-

ation of the system of legislative represen-

tation, and it would ordinarily be patently

improper for the Court to do so, the

judicial power was nevertheless invoked in

%7e

the circumstances there obtaining.

Legislative systems of representation

of the people like New Jersey's having

been held by the federal courts in vio-

lation of equal protection, a new system

was required to be devised. The Court

said:

The duty to comply with the equal

protection clause rests upon the

three branches of State Government

and upon the people of the State as

well. The question is what part must

be played by each.

We think it clear that the judici-

ary should not itself devise a plan

except as a last resort ***,

(43 N.J. at 473)

The Court fixed time limits for

effectuation by the Legislature of a

temporary plan for a constitutional

system of legislative representation to

.

PP —Udlhdc lhc Ohl!) hh

meet the exigency of imminent elections, VIII, Section 2, Paragraph 2, the argu-

and plainly implied it would itself adopt | ment assumes there is a clash with the

and enforce a plan if the Legislature did Education Clause, snd the contention is

not do so in time. Jackman v. Bodine, 44 ; that the former provision controls, We

N.J. 312, at 316-17. See also Asbury Park . doubt the premise. The order we are

Press, Inc. v. Woolley, supra, and parti- making as to use of a portion of the State

cularly the concurring opinion of | aid moneys in 1976-1977 does not call for

Justices Proctor and Schettino, 33 N.J. the expenditure of appropriations not

at 22, expressing a willingness to enter- made by law. The funds, ex hypothesi,

tain an application for the court itself | will be appropriated by the Legislature.

to order a reallocation of county repre- They will still be used for educational

sentation in the General Assembly if the purposes, but in a manner we have con-

Legislature failed to do so, where cluded to be an essential and minimal

population changes in the counties had : interim step in the enforcement of the

° made the existing allocation unconstitu- . Education Clause. If there remains a

tional. | theoretical conflict between the stric-

As to the Senate's reliance upon Art. tures of the Appropriations Clause and the

-39- | -40-

mandate of the Education Clause, we hold

the latter to be controlling in these

circumstances.

The argument is recast in terms of the

doctrine of separation of powers, purported-

ly precluding judical direction for expen-

diture of State moneys, that being ex-

clusively for the judgment of the other

Branches. Cited are such decisions as

Willis v. Dep't of Cons. & Ec. Dev., 55

N.J. 534, 536 (1970) and Fitzgerald v.

Palmer, 4/7 N.J. 106, 108 (1966). These

decisions essentially dealt with the

extent of the judicial power to award or

enforce money judgments or claims against

the State or State agencies out of

unappropriated moneys. They have limited

ele

pertinence here. The interest here at

stake transcends that of an ordinary

individual claimant against the State. It

is that of all the school children of the

State, guaranteed by the constitutional

voice of the sovereign people equality

of educational opportunity.

This Court, as the designated last-

resort guarantor of the Constitution's

command, possesses and must use power

oui to its responsibility. Sometimes,

unavaoidably incident thereto and in

response to a constitutional mandate, the

Court must act, even in a sense seem to

encroach, in areas otherwise reserved to

other Branches of government. Powell v.

McCormack, 395 U.S. 486, 89 S.Ct. 1944,

23 L.Ed. 2d 491 (1969). Amd while the

~-42-

court does so, when it must, with restraint

and even reluctance, there comes a time

when no alternative remains, That time

has now arrived,

So clearly does our constitutional duty

bespeak the present obligation of affirma-

tive judicial action, that we have no

doubt that the order we now make is consti-

tutionally minimal, necessary and proper.

The State Treasurer, the State

Commissioner of Education and any other

State officers concerned with the receipt

or disbursement @& moneys to be appro-

priated by the Legislature for local

educational purposes for the school year

1976-1977 are hereby enjoined from dis-

bursing minimum support and save-harmless

-43-

funds designated by this opinion in

accordance with existing law, and are

directed to distribute and disburse

said funds in accordance with the

incentive equalization aid formula of

N.J.S.A. 18A:58-5b, 6.3. These direc-

tions of course are subject to the

contingency set forth in this opinion,

namely the possible eventuation of timely

and constitutionally appropriate legis-

lative action.

So ordered; supplemental directions or

relief may be applied for on notice. We

retain jurisdiction.

For the Order: Chief Justice HUGHES,

Justices SULLIVAN, PASHMAN and

SCHREIBER and Judge CONFORD - 5.

ohhe

ry ng

FH).

Keen

Majority Opinion

| Footnotes

Against the Order: Justices : 5

MOUNTAIN and CLIFFORD - 2. g 1 he Legislature shall provide for the

maintenace and support of a thorough and

efficient system of free public schools

for the instruction of all school child-

reninthe state *** ,."" (N.J. Const.

(1947), Art. VIII, Section 4, Paragraph

1; see N.J. Const. (1844), Art. IV,

Section 7, Paragraph 6, as amended,

effective Sept. 23, 1875)

" #kk (I)t cannot be said the 1875

amendments were intended to insure

statewide equality among taxpayers. But

we do not doubt that an equal educatiorml

opportunity for children was precisely

in mind, The mandate that there be

maintained and supported '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’ can have no

other import. Whether the State acts

directly or imposes the role upon local

government, the end product must be

what the Constitution commands, A

system of instruction in any district

of the State which is not thorough and

efficient falls short of the constitu-

tional command, Whatever the reason

for the violation, the obligation is tle

-45- | -46-

is the State's to rectify it. If local

government fails, the State government

must itself local government cannot

carry the burden, the State must itself

meet its continuing obligation."

(Robinson v. Cahill, supra at 513)

3 While we recognized "that there is a

significant connection between the sums

expended and the quality of the educa-

tional opportunity" (62 N.J. at 481),

the record of this case and the material

furnished us in preparation for argument

demonstrate that a multitude of other

factors play a vital role in the

educational result--to mame a few,

individual and group disadvantages, use

of compensatory techniques for the

disadvantaged and handicapped, variatim

in availability of qualified teachers

in different areas, effectiveness in

teaching methods and evaluation thereof,

professionalism at every level of the

system, meaningful curricula, exercise

of authority and discipline, and ade-

quacy of overall goals fixed at the

policy level. Hence while funding is

an undeniable pragmatic consideration,

it is not the overriding answer to the

educational problem, whatever the constr

tutional solution ultimately required.

Moreover, while we dealt with the

= ™

constitutional problem in terms of

dollar input per pupil, we recognized the

legitimacy of permitting any school dis-

trict wishing to do so to spend more on

its educational program through local

effort (local “leeway") provided such

did not become "a device for diluting

the State's mandated responsibility."

(62 N.J. at 520)

We do not at this juncture assume such

a timely plan will not be forthcoming.

Progress in that direction has already

been made by the Department of Educa-

tion and effort continues in the

Legislature, If implementing legisla-

tion for financing and the attendant

administrative process is completed

before October 1, 1975, but not in

time to permit review thereof by the

Court by that date, the Court will then,

in the light of the nature of the entire

plan submitted, consider whether it may

be permitted to go into effect for

1976-1977, with or without terms, or

be deferred to subsequent years if

ultimately sustained by the Court.

ate

PASHMAN, J. (concurring in part only

and dissenting).

Two years ago, when in Robinson v.

Cahill, 62 N.J. 473, 303 A.2d 273

(1973) (Robinson I) this Court held

the system of school finance presently

in operation in New Jersey violative of

the education clause of the Constitution

of 1947, N.J. Const. (1947), Art VIII,

Section I, Paragraph 1, it chose to

postpone imposition of a remedial order

until January 1, 1975 so as to give the

Legislature a reasonable period in which

to satisfy the mandates of the Constitu-

tion. Robinson v. Cahill, 63 N.J. 196,

306 A.2d 65 (1973) (Robinson II). Earlier

o£9-

this term the Court again declined to

impose an immediate remedial order in the

expectation that the enielacure would

perform its constitutional duties.

Robinson v. Cahill, 67 N.J. 35, 335

A.2d 6 (1975) (Robinson III). The

effect of this exercise of judidal

self-restraint (which I considered un-

warranted even at the time, see Robinson

III, supra at 40, 335 A2d 6 (Pashman J.

dissenting) has been to delay implemen-

tationf of any substantial relief until

the 1976-77 school year, at the @rliest.

By its terms the education clause

imposes on the Legislature the primary

duty to "provide for the maintenace and

support of a thorough and efficient

-50-

system of free public schools. " In

permitting the grave constitutional

violations recognized remedied for so

long, the Court has sought to rende~

every possible deference to the primacy

in this field granted to the Legislature

by the Constitution. The Legislature,

however, has not acted. We have long

since reached the point beyond which

continued toleration by this Court of

the status quo would implicate the Court

itself in these constitutional violatior,

see Robinson III, supra at 42-44, 335

A.2d 6 (Pashman, J. dissenting), for the

judicial branch has an affirmative duty

to act to protect the rights of citizens

which are guaranteed by the Constitution,

-5i-

even -- perhaps especially -- face of

the legislative inaction. Cooper v.

Nutley Sun Publishing Co., 36 N.J. 189,

196-97, 175 A.2d 639 (1961); King v.

South Jersey National Bank, 66 N.J.

161, 177, 330 A.2d 1 (1974) (dictum) ;

see Asbury Park Press, Inc. v. Woolley,

33 N.J. 1, 161 A.2d 705 (1960).

Some may have constured the Court's

reluctance to impose a remedial order as

abandonment of the constitutional

principles announced in Robinson. I. Such

a construction would mistake judicial

respect for the spirit of the constitu-

tional principle of separation of powers

for loss of judicial will to vindicate

rights guaranteed by the Constitution. No

error could be greater. Today's decisia,

-52-

despite its other shortcomings, is evidence 335 A.2d 6. The fact that such a course

that this Court remains resolved to requires investigiation of novel and

exert its remedial powers to rectify difficult questions of law, see, e. g.,

the violations of the alucation clause , Jackman v. Bodine, 43 N.J. 453, 205 A.2d

. identified in Robinson I. To fail to do . 713 (1964); Asbury Park Press, Inc. v.

so would involve a profound abdication Woolley, supra, or that it may require

by the Court of its constitutional the Court to make controversial or

responsibilities. unpopular decisions, Ridgefield Park v.

Necessarily, this course will carry Bergen County Buard od Taxation, 31 N.J.

the Court into hitherto unexplored 420, 431, 157 A.2d 829 (1960); cf.

territories in the walms of constitu- Cooper v. Aaron, 358 U.S. 1, 78 S.Ct.

tional law and equitable remedies. It 1401, 3 L.Ed.2d 5 (1959, is no grounds fa

is a course, however, which was implicit turning aside.

) and foreseen in our prior decisions in I concur in the general decision of the

° this matter, See Robinson I, supra, . Court to order some form of relief for

62 N.J. at 520-21, 303 A.2d 273; Robinsm the 1976-77 school year and in its

II, supra, 63 N.J. at 198, 306 A.2d determination that it has the power to

65; Robinson III, supra, 67 N.J. 37-38,

-53-

-54-

enjoin the distribution of "save-

harmless aid" anc of "minimum pupil

aid" under the Bateman Tanzman Act,

N.J.S.A. 18A:58-1 et seq., and to

order redistribution of those moneys in

accordance with the more equalizing

"incentive-equalization" formula con-

tained in N.J.S.A. 18A:58-5(b), as a

first step toward remedying present

violations of the education clause.

In my opinion, however, this remedy,

while within the powers of the Court and

adopted with a proper spirit of commit-

ment to ultimate implementation of the

education clause, is not commensurate with

the magnitude and importance of the wrong.

I would order relief both broader in

scope and calculated to more directly

-55-

implement the mandates of the education

clause as construed by our prior decisior

in this case.

I

This case concerns the inequality of

educational opportunity that has resulted

from the wide disparities in resources

devoted to educational purposes in the

various local school districts in New

Jersey. In Robirson I, supra, the Court

did not hold that disparate educational

expenditures were ipso facto unconstitu-

tional as a matter of constitutional

equal protection. 62 N.J. at 482-501,

303 A.2d 273; cf. West Morris Regional

Bd, of Education v. Sills, 58 N.J. 464,

279 A.2d 609 (1971), cert. denied 404

U.S. 986, 92 S.Ct. 450, 30 L.Ed.2d 370

-56-

(1971). Rather the court found that

N.J. Const. (1947), Art. VIII, Section L

Paragraph 1 imposed upon the State the

duty to insure that a certain minimum

level of educational opportunity is

provided every student. 62 N.J. at

513-15, 303 A.2d 273. It held that while

the State may delegate the actual admini-

stration of the public schools to local

school districts, it cannot delegate

the ultimate responsibility for "main-

tain(ing) a thorough and efficient system

of school finance was identified by

the Court as abdication by the State

of this responsibility.

(1)£ the State chooses to assign its

o$J~

< RESe Gre ie a Se

obligation under the 1875 amendment to

local government, the State must do so

by a plan which wilt fulfill the State's

continuing obligation. To that end the

State must define in some discernible

way the educaticnal obligation and must

compel the local school districts to

raise the money necessary to provide

that opportunity. The State has never

spelled out the content of the constitu-

tionally mandated educational opportunity ~

Nor has the State required the school

districts to raise moneys needed to

achieve that unstated standard. Nor is

the State aid program designed to compen~

state for local failures to reach that

level. * * * (62 N.J. at 519, 303 A,2d

at 297; emphasis ir: the original).

oS

Thus the education clause requires

that the State, having chosen to delegate

administration a public schools to local

school districts, must prescribe state-

wide standards for the operation of those

schools so as to insure that all children

are guaranteed an opportunity for an

education of a certain minimum quality.

It must also establish a mechanism for

compelling local compliance with such

standards, and where, for financial reasons,

a local school district cannot comply,

it must provide a means for supplementing

local resources. 62 N.J. at 513, 519,

303 A.2d 273.

In the present case, the failure of

the State to promulgate and enforce

such standards for educational quality

off»

has permitted the development of great

disparities in the amount of resources

devoted in the various ties which appear

to have no educational justification

and which are not responsive to the

constitutional mar.date of the mainte-

nance of a "thorough and efficient"

system of schools throughout the State

but rather are merely a reflection of

the great disparities in relative

wealth of the vacious school districts.

62 N.J. at 515-20, 303 A.2d 273.

The ultimate object of any relief

ordered by this Court must be to compel

the State to assume these duties, which,

to the grave injury of many children

in this State, have gone long neglected.

-60-

Until the State has at least adopted

proper statewide standards, it is impos-

sible for this Court to even determine

to wnat degree the present disparities

are resulting in inadequate education in

some distrits, although the findings of

the trial court put it beyond question

that lack of sufficient expenditures

for education is seriously harming students

in at least some school districts.

Robinson v. Cahill, 118 N.J.Super. 223,

046-68, 287 A.2d 187 (Law Div. 1972).

In the interim, the Court must move to

eradicate at least the grossest disparities.

The redistribution of State’ "save-harm-

less" and "minimum pupil" aid ordered

today is a step, albeit a small one,

-60”

toward the accomplishment of such interim

relief, Regrettably, the Court has not

gone farther and redistributed all State

aid to education and has chosen to rely

exclusively upon the so-called "incentive

equalization" formula, N.J.S.A. 18A:58-

5(b), as its mechanism for reallocation

of those funds which it does redistri-

bute, without attempting to remedy the

substantial shortcomings of that formula

itself. More regrettably still, the

Court has failed in today's decision to

deal with ultimate constitutional viola-

tions at issue here, It has not acted at

all to compel the promulgation of state-

wide standards cf educational quality, an

essential first step in remedying those

-61-

violations, but has merely contented

itself with interim relief, dealing

only with the grossest symptoms of the

failure of the State to meet its obli-

gations and even with those only for a

single year.

Il

The education clause imposes ini-

tial responsibility for formulation of

statewide standards of educational

quality upon the Legislature and, by

implication, upon administrative agencies

to which the Legislature properly delegates

its authority. N.J. Const. (1947), Art.

VIII, Section IV, Paragaph l. These

bodies have broad discretion in defining

those standards, It is not appropriate

~62-

for the judiciary, which has no special

expertise in matters of educational

policy, to interfere with the exercise of

this discretion except where the °xecu-

tive and legislative branches have

altogether failed to establish standards

or where the standards which have been

established are piainly insufficient to

meet the requirements of the Constitution.

The Legislature has expressly dele-

gated the responsibility for supervision

of the quality of the public schools

to the State Board of Education and its

administrative officer, the Commissioner

of Education. N.J.S.A. 18A:4-10, 18A:4-

15, 18A:4-23, 18A:4-24, The Board and

Commissioner are expressly authorized to

=63e

inquire into the "thoroughness and

efficiency" of any public school and to

conduct any necessary tests and

examinations:

N.J.S.A. 18A:4-24

The Commissioner shall, by

direction or with the approval of

the state board, whenever it is

deemed to be advisable so to do,

inquire into and ascertain the

throughness and efficimcy of

operation of any of the schools

of the public school system of the

state and of any grades therein

by such means, tests and examinatias

as to him seem proper, and he shall

report to the state board the

results of such inquiries and such

other information with regard

thereto as the state board may

require or as he shall deem proper,

but nothing in this section shall

affect the right of each district

to prescribe its own rules for

promotion,

The Board is also expressly authorized

to promulgate, N.J.S.A. 18A:4-15, and the

6h<

Commissioner to enforce, N.J.S.A.

18A:4-23, rules and regulations implement-

ing the education clause of the State

Constitution. The powers of the Board

and Commissioner under these statutes

have in the past been construed very

bradly. See Jenkins v. Morris Tp.

School District, 58 N.J. 483, 279 A.2d

619 (1971); East Brunswick Tp. School

Board v. East Brunsiwke Tp., 48 N.J.

94, 223 A.2d 481 (1966); cf. State Bd,

of Education v. Netcong Bd. of Education

108 N.J. Super. 564, 571-73, 262 A.2d 21

(Ch.Div. 1970), aff'd 57 N.J. 172, 270

A.2d 412 (1970), cert. den, 401 U.S.

1013, 91 S.Ct. 1253, 28 L.Ed.2d 550

(1971). The Board and Commissioner are

-§5-

thus statutorily empowered to formulate

statewide standards of educational

quality as well as being uniquely quali-

fied to do so.

Therefore, while retaining jurisdiction

in this Court, I would remand the case

in part to the State Board of Education

to formulate statewide standards for

educational quality and to evaluate

each school district to determine whether

it is in compliance with those standards?

and, if not in compliance, whether the

district has the financial ability to

comply without further State assistance.

The type of standards required by the

education clause may be inferred from the

language of that clause and the cases

interpreting it. "'Thoroughness" and

ofits

;

¥

"efficiency" are ultimately measures of

the effectiveness of the public school

system in performing its function --

educating the children who attend it.

The former Supreme Court characterized

the significance of the education clause

in the following terms:

Its purpose was to impose on the

legislature a duty of providing for

a thorough and efficient system of

free schools, capable of affording to

every child such instruction as is

necessary to fit it for the

ordinary duties of citizenship.* * *

(Landis v. Ashworth, 57 N.J.L. 509,

512, 31 A. 1017, 1018 (Sup.Ct.1895).

Similarly, in Robinson I, we said:

The Constitution's guarantee must

be understood to embrace that educa-

tional opportunity which is needed in

the contemporary setting to equip a

child for his role as a citizen and

as a competitor in the labor market.

(62 N.J. at 515, 303 A.2d at 295).

-67-

The statewide standards” must, therefore,

be cast in terms of the quality of

education which the local school districts

are actually providing to the students

who atterd them, ©

That this type of standard is mandated

by the constitution implies neither that

other types of standars may not also be

convenient and free of difficulties. In-

deed the Commissioner has urged upon the

Court the practical and theoretical

obstacles to adopting and enforcing

standards focused directly upon the ques-

tion of whether public schools are in

fact educating the students who attend

them, ’ Nevertheless, that question is

precisely the one that is of most

importance to children, their parents,

-68-

and, ultimately, to society as a whole. ®

The product of such a remand would be

both a set of standards and an evaluation

of how much additional money would be

needed to establish a “thorough and

efficient" system of public schools in

all school districts. I would get a

timetable for the remand so as to enable

the Court to hear any appeals from the

decisions of the Board and to take any

steps necessary to compel implementation

of the Board's decisions (with modifi-

cations by the Court, if any) for the

1976-77 school year. I would expect the

Board to fully comply with the mandate of

the Court upon such a remand in time for

implementation of the Board's decisions

in the 1976-77 school year.

-69-

At that time, it would be proper for the

Court to consider what would be the most

appropriate mode of exercising its

power to compel provision of any

additional resources needed to implement

the mandates of the education clause if

the Legislatuye“had not acted in the

necatine. See generally Robinson III,

supra, 67 N.J. at 40-41, 335 A.2d

(Pashman, J. dissenting).

Such a remand, designed to lead to

implementation of the mandates of the

education clause beginning in the 1976-

77 school year rather than at some in-

determinate future date, seems to me

both fully within the practical capaci-

ties of the State Board of Education

» =

and better calculated to fully remedy

the constitutional violations identi-

fied in Robinson I than does imposition

of mere interim relief.

Iil

Had the Court chesen to order a remand

of the type outlined above, we would in

all likeliinood not now be faced with the

awkward problem of attempting on an

ad hoc basis to eradicate the grossest

disparities in educational expenditures.

Nevertheless, since the majority has

chosen to follow that route, the method

it has adopted seems to me to call for

some comment.

I have no doutt as to the Court's

power to redistribute existing State aid

aie

would see no justification for proceeding

for education so as to reduce disparities

as gingerly as does the Court today. The

among the various school districts in

net effect of redistributing "save-harm-

the resources available for educational

less and "minimum pupil" aid under the

purposes, The arguments to the contrary

"Sncentive-equalization" formula is dis-

are considered and properly disposed of

turbingly small. The Commissioner of

“in the opinion of the majority. Ante at

Education estimates that those cate-

346-360, 339 A.2d at pp. 200-201.

gories of aid will total only $303 mil-

The education clause, of course, does

lion? in 1976-77 out of a total expen-

not require the State to subsidize local

diture for public schools from all sources

inefficiency or waste. Rather the State

of $3.03 billion, Only $101 million

has a duty to insure that moneys granted

of the money will actually be shifted

to a local school district are in fact

from well-to-do districts to poorer ones.

properly used by that district to provide

Thus we are effecting only about a 3%

a "thorough and efficient" education for

° change in the overall allocation of

its pupils.

educational resources.

Even if I could approve the majority

The majority chocses not to redistri-

decision to order only interim relief, I

bute State pension contributions to the

o73-<

oF%e

Teachers' Pension and Annuity Fund,

N.J.S.A. 18A:66-33; atypical pupil aid,

N.J.S.A. 18A:58-6; building aid, foun-

dation program, N.J.S.A. 18A:58-23, 24

or transportation aid, N.J.S.A. 18A: 58-7,

categories of state education aid which

totaled approximately $309 million in

1974-75. At best these aid programs

fail to respond to the problem of dispari-

ties in educational expenditures among

districts which result from the gross

interdistrict differences in resources

available for education purposes, thus

diluting the small equalizing effect

which the remedy ordered by the Court

may have. Some of these programs seem

_'o

ee

to have the effect of actually magni-

fying those disperities. Transportation

aid and atypical pupil aid are distri-

buted to districts on the basis of actual

costs, regardless of the differing

ability of the various districts to ob-

tain funds for these special services

from local revenue sources. State pension

contributions are made to all districts,

which offer higher teacher salaries,

than in poorer districts. Distribution

of building aid is somewhat better

correlated with the relative wealth

of the various districts, but the

variation in ad among districts is not

nearly so great as the disparities in

their resources would require. All of

oFSe

these types of aid contribute more to

the problem of disparities in educa-

tional expenditure than they do to its

solution.

The majority accepts as grounds for

not redistributing these categories of

aid, and most especially for not redis-

tributing State pension contributions,

the argument that including them in the

remedial order would lead to "adminis-

trative confusion.'' One might expect

that this argument, which has been

dusted off, polished up, and put on

display by the advocates of the status

quo at every stage of this all too

prolonged litigation, see e. @.,

Robinson III, supra, would have begun

~~" =

to lose its allure. +1 Mere injunction

and redistribution of these forms of

aid need have no effect on bona fide

obligations local distrikts have to

teachers, special students, students

needing transportation, or any one else.

The sole effect ig to shift the burden

of financing these obligations from the

State to local school districts, which

may use any available source of revenue

including redistributed State aid,

There is no reason to believe that in

the full year between now and July As

1976, administrative problems in making

this shift could not be solved and the

feared this shift could not be solved

and the feared "confusion" mastered,

oF Pe

Mere administrative inconvenience is

paltry grounds indeed for failing to

forcefully vindicate rights guaranteed

by the Constitution, Cf. Cleveland

Board of Education v. La Fleur, 414

U.S. 632, 646, $4 S.Ct. 791, 39 L.Ed.2d

52 (1974); Frontiero v. Richardson, 411

U.S. 677, 690, 93 S.Ct. 1764, 36 L.Ed,.2d

583 (1973).

Nor am I satisfied that the Court has

acted wisely in choosing to employ the

"incentive-equalization" formula con-

tained in N.J.S.A. 18A:58-5(b) without

significant modification as the mecha-

nism for redistributing the State aid

which is covered by its order.

The "incentive-equalization" formula

_ *

is an example of what is sometimes

described as "district power equalizing"

formula, See, e. g., Coons, Clune &

Sugarman, Private Wealth & Public

Education, 202 (1970), Recognizing that

a district with a small property tax

base cannot provide adequate revenues for

education even if it taxes itself very

heavily, the “incentive-equalization"

formula augments the power of the

district to raise revenues by guaran-

teeing a certain minimum valuation per

pupil. Thus, the State grants aid to

the district equal to the amount the

district would have raised by applying

its school tax rate to the difference

between the guaranteed valuation per

pupil.

-79-

The 'incentive-equalization" formula is

not a pure district power equalizing

formula because it also seeks to take

into account the fact that the cost of

education is not the same for all students,

The cost of high school education per

pupil is greater than the cost of kin-

dergarten education. A district, many

of whose students fall into categories

with high per pupil educational costs,

may be unable to raise sufficient

revenues to meet its educational needs

even though another district with the

same property tux base and same number

of pupils, but whose pupils fall into

categories with lower per pupil educa-

tional costs, could do so,

-80-

Therefore under the "incentive-equa-

lization" formula, pupils are placed

into different categories depending on the

relative per pupii cost of educating them

and pupils are "weighted" in the formula

depending upon what category they fall

into. N.J.S.A. 18A:58-2. Thus elementary

school pupils are given a weighting of

1, kindergarteners are given a weighting

of .75 and high school studerts are given

a weighting of 1.3. Rather than providing

a guaranteed valuation per pupil, the

State under the "incentive-equalization”

formula provides a guaranteed valuation

per weighted pupil. In particular, the

Legislature recognized that some pupils

because of cultural, social and economic

sfiie

circumstances, may require more costly

compensatory programs, and gave an

additional .75 weighting for each child

in the district receiving welfare (AFDC)

benefits, See generally, State Aid to

School Districts Study Commission, A

State School Support Program for

New Jersey, 39-40 (1968) (Bateman Report).

There is a third reason why a district,

even though it taxes itself heavily,

might not be able to raise enough

revenues to meet its educational needs.

Some areas, particularly urban areas,

have exceptionally high non-educational

expenses which must be financed through

property taxes. Expenses which are

exceptionally high in urban areas include

=82-

county and municipal welfare, police and

fire protection, and sanitation, In

these areas, revenues raised by property

taxes which might otherwise be used for

education, must be diverted to non-educa-

tional purposes. In addition, a substan-

tial number of municipalities because of

their size, density, and special social

problems, have quite properly become in-

volved in developing a broad range of

pullic services, particularly in the area

of human health ana welfare, not provided

by other smaller and more affluent

communities. This, too, has contributed

to the staggering rise in city expenditures,

further eroding the one and the same tax

base -- local real estate ratables.

a89e

Hence a district situated in an area wh

which has a heavy burden of non-education

expenses may not be able to meet its

educational needs, even though another

district with the same property tax-base,

the same number of weights pupils, and

the same heavy tax rate could do so.

The effects of this problem, which has

been labeled "municipal overburden,"

on the ability of some urban areas to

meet their educational needs is now well

documented. See, e. g., Robinson v.

Cahill, 118 N.J.Super. 223, 273, 287

A.2d 187 (Law Div.1972). Berke, Answers

to Inequity, 82-86 (1974); Grubb &

Michelson, "Public School Finance in

a Post-Serrano Worid, " 8 Harv. Civ.

~-84-

Rights -- Civ. Lib.L.Rev. 550, 564-66 (1973);

Note, "A Statistical Analysis of the

School Finance Decisions: On Winning

Battles & Losing Wars, " 81 Yale L.J.

1303, 1314-15 (1972); Coons, Clune &

Sugarman, Private Wealth & Public Educa-

tion 233-36 (1970). Indeed, the State

Aid to School Districts Study Commission

(Bateman Commission), which drafted what

subsequently became the Bateman-Tanzman

Act, took express note of the problem in

its report. Batemen Report, supra at 9,

42-43, 55 97-99, ‘The Bateman Commission,

however, expressly chose not to deal with

this problem in devising an aid formula

and no provision was made for this problem

in the Bateman-Tanzman Act, Bateman Report,

-85-

supra, 8-9, 42-43, 54-55, a fact that was

noted in Robinson i, supra, 62 N.J. at

519, 303 A.2d 273. Recent attempts to

reform school finance in New Jersey

have consistently treated the problem of

municipal overburden as an important

defect in the present system to be

remedied. See, e. 3-, Special Message by

Governor Byrne to the Legislature, A

Plan for Education and Tax Reform in

New Jersey, 21-25 (June 13, 1974).

The majority concedes the significance

of the municipal overburden protlem but

declines to deal with the impact of this

problem on disparities in resources avail-

alle for education in many local aschool

districts because (a) many districts

-86-

suffering most from the effects of muni-

cipal overburden will receive increased

aid anyway under the Court's order and

(b) the problem is too complicated to be

dealt with by the court. Ante at 350-

352, 339 A.2d at pp. 91-202. Neither

of these asserted reasons is well-founded.

As described above, the "incentive-

equalization" formula contained in N.J.

S.A. 18A:58-5(b) was designed to deal

with two sources of disparity among

local school districts in ability to

finance education: differences in local

property tax bases and differences in

per-pupil education costs. The third

source of disparity, municipal overburden,

is wholly independent of the other two

problems; even if those problems were

eSFe

completely solved, that of municipal

overburden would remain. The

"incentive-equalization" formula was not

designed to deal with the problem of

municipal over-burden, That some districts

that suffer from municipal overburden

also suffer from insufficient tax bases

and high per-pupil costs and, so, benefit

from increased use of the incentive

equalization formula is pure happenstance, +2

To measure with perfect accuracy the

impact of municipal overburden on the

ability of urban areas to provide re-

sources for education is an admittedly

formidable task, cf. Bateman Report,

supra at 55 (urging further study), but

there are a number of simple ways of

-88-

adequately approximating it.) The

'incentive-equalization" formula can be

adjusted to compensate in a rough way

for murkipal overburden without great

difficulty. 4 The failure of the Court

to attempt to do so simply buries the

cities of New Jersey a little deeper in

social and financial difficulties.

IV

I regret that I aim unable to concur

more fully in the majority opinion.

This case, born in controversy and reared

in criticism, is one of rare importance

for the people of New Jersey. It would

be better if we could speak with a singe

voice. The relief ordered by the Court

is a dep forward and is welcome evidence

-89-

of proper judicial commitment to ultimate

implementation of cne education clause,

but it is only a very small step and not

nearly adequate to the circumstances.

It does imcomplete justice at best.

It is the State's obligation to rectify

any breach of the education clause. "Es

local government fails, the State govern-

ment must compel it to act, and if the local

government cannot carry the burden, the

State must itself meet its continuing

obligation." Robinson v. Cahill I, 62

N.J. at 513, 303 A.2d at 294.

That obligation is not met by unsuc-

cessful efforts by the legislative and

executive branchesto devise a plan to

achieve the results demanded by the

-90-

Constitution, however arduous and bona

fide those efforts may have been. To the

children of New Jersey it matters not at

all whether the State's failure to provide

the educational opportunities guaranteed

by the Constitution is the consequence of

a deliberate policy of intransigence or

merely the by-product of deadlock within

the coordinate branches of government,

It has been suggested that the Legis-

lature cannot reasonably be expect to act

while the present depressed economic condi-

tions continue, The dimensions of consti-

tutional rights and duties, however, do not

fluctuate with the rise and fall of the

stock market; nor are those @ligations

of the State contingent upon the passing

Sie

political expediency of raising revenues

to comply. Economic claustrophobia

cannot be permitted to overcome consti-

tutional mandates. Obedience by the State

to its organic charter is a perpetual

duty--not one to be deferred to some

more propitious future date. Government

must observe the law scrupulously. It

cannot be a law-breaker.

This Court may not put its imprimatur

on the consequences of the existing

stalemate within the Executive and

Legislature. We, too, are bound by the

mandates of the Constitution. It would

undoubtedly be more convenient to endure

consitutional violations than to take

the grave steps necessary to prevent Or

«92<

correct them, But if we long permit the

guaranteed rights of the children of this

State to be negated by governmental

inaction, then we have failed to live up

to our own constitutional obligations.

The Court has the power to go even

farther in ordering relief than I have

urged in this opinion, It has the

inherent power to completely remedy the

profound constitutional wrongs identi-

fied in Robinson I, supra. Delays, which

are greeted with sighs of relief, are no

substitte for action. We should not

fear unpopularity. Any further delay

or inaction is not to be tolerated, It

is no longer enough for this Court to make

ripples. To vindicate the rights

=93-

cuaranteed by the education clause we Footnotes

must make great breakers, and, if need

be tidal waves. l This is, of course, only one possible

definition of gquality of educational

Despite the order the Court issues . opportunity. See generally McDermott

& Klein, "The Cost-Quality Debate in

today, hundreds of thousands more chil- . School Finance Litigation: Do Dollars

Make a Difference," 38 Law & Contemp.

dren will be obliged to pass through Prob, 415, 416-23 (1974); Wise, "Legal

Challenges to Pubiic School Finance,"

inadequate shool systems in this State 82 School Rev. i, 15-19 (1973). The

use of this definition by the Court

without receiving the quality education throughout this litigation should not

be understood as foreclosing the

to which they are entitled. I cannot possibility that other definitions

may be more appropriate to other cir-

concur in such a result. cumstances to which the education

clause applies.

The Court accepted the finding of the

trial court that as a result of the

disparities among districts in resources

devoted to education, the State had

failed to fulfill its obligation to

provide a "thorough and efficient"

syste or education for all pupils,

° . Hohe tesmenn le Aupra, OH! ted, at TN 1,

303 AL?) 27%, The relatLlonship between

expenditures on educatlon and thie

quality of educetion provided has been

a much mooted question among educators,

—_ -95-

— se en

Sec, e. g-, McDermott & Klein, "The

Cost-Quality Debate in School Finance

Litigation: Do Dollars Make A Differ-

ence?" 38 Law & Contemp.Prob,. 415

(1974); Mosteller & Moynihan, eds.

On Equality of Education (1972);

Buthrie, Kleindorfer, Levin & Stout,

Schools & Inequality (1971); Coleman,

Equality of Educational Opportunity

(1966). There car hardly be any doubt,

however, that adequate financing is a

necessary condition for an effective

educational system, even if not a

sufficient one. Cf. McDermott &

Klein, supra, at 429-30.

3 This determination would necessarily

involve an evaluation of the cost of

achieving a "thorough and efficient"

standard of each Gistrict and in the

State as a whole.

The doctrine of primary jurisdiction

may demand that issues concerning the

substantive educational standards

required by the education clause arising

in the course of this case be decided

initially by the Board. Glenn View

Development Corp. v. Public Service

Elec. & Gas. Co., 57 N.J. 304, 271

A.2d 903 (1970); Woodside Homes, Inc.

v. Morristown, 26 N.J. 529, 141 A.2d

8 (1958).

-96-

"Primary jurisdiccion * * * " applies

where a claim is originally cognizable

in the courts, and comes into play

whenever enforcement of the claim

requires the resolution of issues

which, under a regulatory scheme,

have been placed within the special

competence of an administrative, body.

* * * (United States v. Western Pacific

R.R. Co., 352 U.S. 59, 63-64, 77 S.Ct.

161, 165, 1 L.Ed.2d 126 (1956).

This doctrine is, of course, merely

one of priority of jurisdiction and

operates to give the Court the benefit

of the expert judgment of the Board and

Commissioner. It does not relieve the

Court of its ultimate responsibility to

interpret and enforce the education

clause. Federal Maritime Bd. v.

Isbrandtsen Co., 256 U.S. 481, 78 S.Ct.

851, 2 L.Ed.2d 926 (1958); 3 Davis,

Administrative Law, Section 1901 at

3-6 (1958).

The promulgation of statewide standards

does not necessarily mean that all

school systems must conform to a single

rigid pattern, It does mean that the

State may not permit diversity to be

accompanied by a dilution in the quality

of education provided.

The parties have briefed and argued at

considerable length the merits of

"input," "output" and "process" stan-

dards. See Tractenberg, "Reforming

School Finance Through State Constitutions:

Robinson v. Cahill Points the Way,"

27 Rutgers L.Rev. 365, 421-22, nn. 276,

277 (1974). The distinctions among

these types of standards may in

application be more illusory than red,

Ultimately a well-conceived educational

system requires that educational goals

be formulated, that decisions be made

as to what inputs of human and material

resources are required, that the re-

sources be properly allocated among

students according to their needs in

light of the goals, and finally that the

success of the system in achieving

its educational goals be evaluated and,

based upon that evaluation, the choice

of educational goals, the decision as

to resource needs, and the process of

allocating resources to students be

revised, Cf. Levin, "A Conceptual

Framework for Accountability in Education,"

82 School Rev. 363 (1974). N.J. Const.

(1947), Art. VIII, Section IV, Paragraph

1 does not require either "input,"

"output," or "process" standards in

the abstract. It does require that the

State adopt educational goals which

-98-

8

implement the constitutional requirement

that the system be designed to equip

each child for his role as a citizen

and a competitor in the labor market

and that the State adopt standards

which focus upon the success of each

school district in reaching those goals.

It should be noted that the State

has already established a statewide

educational assessment program. N.J.A.

C. 6:39-1.1 et seq.; see Ascher,

"Educational Assessment," N.J.E.A.

Journal 22 (Nov. 1972). While the

adequacy of existing standardized tests

to evaluate educational accomplishment

is open to serious doubt, see, e. &-,

McDermott & Klein, supra at 424-238;

cf, Larry P. v. Riles, 343 F.Supp.

1306 (N.D.Cal.1972); Note, "Legal

Implications of the Use of Standardized

Tests in Employment & Education," 68

Colum.L.Rev., 691 (1968); but see

Berkelman v. San Francisco Unified

School District, 501 F.2d 1264 (9 Cir.

1974), the establishment of a statewide

assessment program is a necessary first

step toward implementing standards of

the type demanded by the education

clause,

The Board has announced its intention

to promulgate regulations implementing

-99-

10

the education clause. Proposed Rules

for Thorough and Efficient Education,

7 N.J.Reg. 132(a) et seq. (April 10,

1975). Since these regulations have

not yet been promulgated in their final

form it would be inappropriate to com-

mentupon them in any detail. Before

this Court, the Board and Commission

have declared that their intention is

to issue regulations which establish

"process" standards, They define the

"process" approach as "an educational

system focusing on the delivery of

resources to students in the most effec-

tive way, ‘effective’ being defined

in terms of whatever works best for each

individual learner." If this is indeed

the thrust of the regulations to be

issued, then they would not comply with

the constitutional requirements.

This estimate assumes that the Bateman-

Tanzman Act will continue te be fully

funded,

The situation in this case is thus very

different from che one presented in

Gautreaux.v. Romney, 457 F.2d 124

(7 Cir. 1972), where the proposal that

funding of wholly unobjectionable pro-

grams be enjoined so as to stimulate

correction ad constitutional defects in

other programs was rejected.

-100-

11 The majority fears that the grant of

any affirmative relief for this school

year would create chaos in the bud-

getary process in local school districts,

It is undeniable that a grant of

affirmative relief by the Court for

this school year would complicate the

process of appreval of local school

budgets this spring. That process is

governed by the various provisions of

N.J.S.A. 18A:22, which sets out a

timetable for formulation and adotpion

of these budgets. The Legislature,

however, has already pushed the time-

table back for this year. L.1974, c.

191, Even this revised schedule is

not so tight as to preclude further

compression, either by the Legislature,

or in the absence of legislative action,

by the Court itself. Oral arguments

could be scheduled in mid-February and

a decision announced shorty thereafter.

A certain amount of confusion and a

great deal of dissatisfaction would

undoubtedly result. The first can be

ameliorated by diligence on the part of

State and local officials. The second,

the inevitable discordant accompani-

ment to possible change, should play no

part in our decision,

The real question is: Can this Court,

-101-

12

consistently with its obligations to

uphold and to enforce the Constitution,

trade the constitutionally guaranteed

rights of hundreds of thousands of

children to an equal educational

opportunity for the possibility of

avoiding some difficulties in meeting

local budget-maeking deadlines. I do not

see how this question can be answered |

in any way but in the negative.

(Robinson III, supra, 67 N.J. at 42-43,

335 A.2d at 9-10 (Pashman, J., dissen-

ting); footnotes omitted).

In general large cities do not suffer

from inadequate tax bases but do suffer

badly from municipal overburden,

Hence use of a district power equalizing

formula ordinarily tends to cuase these

cities to lose state aid rather than

gain it. This has been one of the

principle defects of the use of that

approach, Berke, supra 83, 104-5;

Grubb & Michelson, supra 564-66, That

major New Jersey cities benefit from

use of a power equalizing formula is

a measure of the desperate condition of

our cities, for it indicates that they

suffer from low property values as

well as municipal overburden. Jersey

City (553), Paterson (550), Hoboken

(552), Trenton (566), Newark (572) and

Camden (575) ail rank among the 30

-102-

13

14

lowest of the 573 opexating school

districts in equalized valuation per

weighted pupil.

Usable measures of the relative degree

of municipal overburden include (1)

the ratio of local revenues per capita

used for non-school expenses to the

statewide average of local revenues per

capita used for non-school expenditures,

Grubb & Michelson, supra at 565 &n.

39; (2) the ratio of the percentage of

local revenues used for school purposes

to the statewide average percentage of

local revenues used for school pur-

poses, id.; and (3) ratio of the local

non-school tax rate to the statewide

average local non-school tax rate. See

Bateman Report, supra at 97.

With suitable restrictions and adjust-

ments any of the measures described in

the previous footnote can be used to

modify the value for the local property

tax base used in the "incentive-equali-

zation" formula so as to reflect the

fact that in some districts much of the

ostensible property tax base is un-

available for education purposes be-

cause of disproportionate non-educational

demands upon it. In other words,

rather than the formula providing that

the State will grant aid equal to that

which would be raised by applying the

-103-

local tax rate to the difference

between the guaranteed valuation and the

local property tax base, the formula

would provide that the State would

grant aid equal to that which would be

raised by appiying the local tax rate

to the difference between the guaran-

teed valuation and a figure more truly

representative of the portion of the

local property tax base which is actually

available for educational purposes.

Thus, for example, the equalized

valuation might be replaced in the

"incentive-equalization" formula by the

equalized valuation multiplied by the

ratio of the percentage of local reve-

nues used for school purposes to the

statewide average percentage of local

revenues used for school purposes (a

measure of relative municipal overburden).

See, e. g., Bateman Report, supra at

97-98; Grubb & Michelson, supra at

562-63; Mich.Comp.Laws Ann, Section

388.1279 et seq. discussed in Grubb,

"The First Round of Legislative Reforms

in the Post-Serrano World," 38 Law &

Contemp. Prob. 459, 484 (1974).

-104-

MOUNTAIN and CLIFFORD, JJ. (dissenting).

Today's decision marks the Court's

entrance into che business of financing

public education. There seems to be at

least tacit agreement among us all that by

reason of both constitutional law and the

complexities of the subject matter, the

judiciary is conspicuously unsuited for

shouldering the burdens of that business,

more appropriately left to the Legislature

as unmistakably provided by the 1875

amendment to the 1844 Constitution, Arti-

cle IV, Section VII, Paragraph 6, carried

over to the 1947 Constitution in Article

VIII, Section IV, Paragraph 1. Since

the most meticulous searc. of our Consti-

tution fails te disclose any textual

-105-

warrant for the unprecedented step taken

by the majority, justification for this

acknowledged judiciai encroachment on

the legislative preserve must be sought

elsewhere. And so the majority discovers

"a legislative transgression of ‘right

guaranteed to a citizen,'" ante at 34/7,

339 A.2d at p. 200, in turn evoking a

judicial "response to a constitutional

mandate," ante at 354. 339 A.2d at p.

204 presumably the "mandate" of Article

VIII, Section IV, Paragraph l referred to

above, directed solely to the legislative

branch, since no other mandate is or possi-

Hy could be identified. By such diapha-

nous threat hands the justification --

indeed, the asserted necessity -- for the

Court's action.

-106-

Because we find ourselves in substan-

tial accord with meny of the majority's

views, and because we recognize the

desirability of as much unanimity as may

be mustered in support of so significant

a decision as todays, it is with some

reluctance that we register our dissent.

Few cases receive the xhaustive treatment,

both by way of opportunity afforded any

interested party to present his views and

by way of frequent exchange of ideas among

members of the Court, as has been accorded

this one. The opinions of our colleagues

are entitled to and do receive our pro-

found respect. But so firm is our con-

viction concerning the proper scope of

the judicial function at this juncture that

we feel obliged to express our

-107-

disagreement with the remedy here invoked,

That disagreement focuses onthe majority's

conclusion that school aid funds appro-

priated or to be appropriated by the

Legislature should be reapportioned by this

Court in a manner which will allegedly

attain a closer approximation of the

kind of funding believed to be required

to support "a thorough and efficient"

education. We think the Court should

rather stay its hand,

Initially it snould be emphasized that

in wrestling with this difficult problem

it is of the utmost importance to bear in

mind that as of this moment no one has

defined what is meant by "a thorough and

efficient'' education. As the majority

-108-

correctly points out, it is not the function

of this Court to establish the components

of a thorough and efficient education.

It is rather its duty to “appraise (the)

compliance" of an educational system pre-

sented for judicial review as to constitu-

tional sufficiency. We note with approval,

as does the majority, that the State

Commissioner of Education has prepared and

published rules and regulations looking to

this end, 7.N.J.Reg. 132 (April 1975).

We are likewise aware that in each house

of the Legislature bills have been intro-

duced bearing directly upon the same subpct

matter,

In our view there has clearly been

delegated to the Commissioner of Education

-109-

the power, as there has also been allocated

to him the responsibility, to take what-

ever sts may be necessary to define the

meaning of the constitutional term

"thorough and efficient,'' to lay down

guidelines for the implementation of a

program that will give it reality, and to

see to it that the school districts of the

State actually meet these wquirements. Bd.

of Educ. of Twp. of E. Brunswick v. Twp.

Counsil of E. Brunswick, 48 N.J. 94, 223

A.2d 481 (1966); Bd. of Educ, of Elizabeth

v. City Council of Elizabeth, 55 N.J. 50l,

262 A.2d 881 (1970); Jenkins v. Twp. of

Morris School Dist., 58 N.J. 483, 279

A.2d 619 (1971). A clear if unstated

effect, of our earlier opinion in this case,

-110-

Robinson v. Cahill, 62 N.J. 473, 303

A.2d 273 (1973); was to lay upon the

Commissioner an immediate obligation to

formulate rules designed to make precise

the nature of the constitutional mandate

and to provide for its implementation.

While we think it clear that as the law

now stands the Commissioner of Education

has both the power ard the obligation to

define what is meant by ‘'h thorough and

efficient" education and to see that our

public school system meets prescribed

standards, we are very conscious that in

exercising such functions he is acting

more or less as an agent of the Legis-

lature. The latter is at any time com-

pletely at liberty to change or revoke

his powers or to supersede them by the

-111-

passage of legislation immediately directed

to the issue. Some of the bills that have

been introduced seem to have a close tex-

tual correlation with the Commissioner's

proposed rules, suggesting that there is

here a commendable cooperative effort

being made by the two political branches

of government.

Thus far we are in general agreement

with the majority. When, however, it

comes to the proposed reallocation of

appropriated funds, as we have mid, we

take a different view. The problem rests

in the concept commonly referred to as the

doctrine of the separation of powers, It

finds explicit expression in the New

Jersey Constituion:

-112-

The powers of the government shall

be divided among three distinct

brances, the legislative, executive,

and judicial, No person or persons

belonging to or consituting one branch

shall exercise any of the powers

properly belonging to either of the

others, except as expressly provided

in this Constitution.

(Art. ILI, Paragraph 1.)

The doctrine has not enjoyed a consistent

development; it has been praised and it

has been criticizec., The uneven history

of the concept may be noted but need not

detain us here. The Supreme Court of the

United States once said that all powers

of government are divided into the

executive, the legislative, and the judi-

cial; and that it is "essential to the

successful working of this system, that

the persons entrusted with power in any

-113-

one of these branches shall not be per-

mitted to encroach vpon the powers con-

fided to the others, but that each shall

by the law of its creation to be limited

to the exercise of the powers appropriate

to its own department and no other."

Kilbourn v. Thompsor, 103 U.S. 168, 191,

26 L.Ed. 377, 387 (1881). Professor

Kenneth Culp Davis believes that probably

no more extreme statement of the theory

of separation of powers can be found in

Supreme Court opinions. I Davis,

Administrative Law Treatise, Bi.o9, at

64 (1958). Some years iater, although

in dissent, Justice Holmes suggested a

somewhat different and rather more modern

view:

-114-

It does not seem to need argument to

show that however we may disguise it

by veiling words we do not and cannot

carry out the distinction between legis-

lative and executive action with mathe-

matical precision and divide the branch-

es into water tight compartments, were

it ever so desirable to do so, which 1

am far from believing that it is, or

that the Constitution requires.

(Springer v. Government of Philippine

Islands, 277 U.S. 189, 211, 48 S.Ct.

480, 72 L.Ed. 845, 853 (1928) .)

The most significant challenge to the

doctrine of the separation of powers came

with the birth and lusty growth of admin-

istrative law. The story has been often

told and needs no repeating. In modern

times Congress and state legislatures have

created regulatory agencies that have

quite generally possessed legislative,

judicial and executive powers. Thirty or

forty years ago administrative agencies

-115-

were attacked as being flagrant examples view adopted by this Court in Mulhearn v.

of a violation of the doctrine of the sep- Federal Shipbuilding & Dry Dock Co., 2

aration of powers, but the positive needs N.J. 356, 362-65, 66 A.2d 726 (1949) .*

of government supported by flexible con- As this Court more recently observed:

stitutional interpretation won the day. The doctrine of separation of powers

‘ must * * * be viewed not as an end

in itself, but as a general principle

intended to be applied so as to

maintain the balance between the three

branches of government, preserve their

respective independence and integrity,

and prevent the concentration of un-

checked power in the hands of any one

branch,

Landis, The Administrative Process 1-5

(1938); 1 Davis, supra, §1.09; 1 Cooper,

State Administrative Law 15 et seq. (1965).

Clearly today the doctrine of the sep-

aration of powers cannot be said to re-

: (David v. Vesta Co., 45 N.J. 301,

quire a complete compartmentalization 326, 212 A.2d 345, 358 (1965)

(Emphasis in original).)

along triadic lines. More and more courts

Professor Davis is also of the view

have come to recognize that where a that

* * * the true principle that

should guide the allocation of power

within the general framework is not

the principal of separation of the

three kinds of power but is the

principle of check.

practical necessity exists, a blending of :

powers will be countenanced, but only so

long as checks and balances are present

to guard against abuses. This was the

The danger is not blended power. The

danger is unchecked power.

-116-

-117-

(1 Davis, supra, $1.09, at 68.)

Two examples may help to illustrate the

point we make. It would probably be gen-

erally conceded that when the Legislature

bestows judicial and executive powers upon

an agency of its creation, there is a de-

parture from the doctrine of the separa-

tion of powers, at least as seen in its

most simplistic and restricted sense. So

too, when judges make law in the process

of deciding cases, it can properly be

said that they ate indulging in legisla-

tion and that this is theoretically re-

pugnant to the doctrine of the separation

of powers. Each of these practices,

however ,~is now completely snnaod and

has indeed become commonplace. Signifi-

-118-

cantly, however, tn each of these in-

Stances the power being exerted by the

branch of government to which that power

is not intrinsically inherent is not

unchecked. In the first example given,

it will be noted that the various powers

bestowed upon a judicial agency are all

subject to judiciai review. In che

second example the judicial legislation

undertaken by a court in the exercise of

its adjudicatory function is immediately

subject to the will of the legislature.

The latter has the last word; by approp-

riate legislation the rule of law laid

down by the court can be at once changed

or annulled.

But what of the power that we are con-

sidering here? We assume it would not

-119-

be disputed that the power of appropria-

ting public funds is commonly understood

to be a legislative function. If the

Court undertakes to reallocate funds the

ultimate disposition of which has been

fixed by the Legislature pursuant to t he

exercise of its acknowledged power of

appropriation, how is this new-found power

of the Court to be controlled? How can

it be checked? We discern no way that

this can be done. The power to approp-

riate is singularly and peculiarly the

province of the Legislature. It is com-

monly thought of as an adjunct to the

taxing power. If the courts are at

liberty, for whatever reason, to reallo-

cate appropriated funds in some particular

-120-

case, why may not the courts do so in

other cases as well? Who is to stay the

judicial hand and what law is to guide

its exercise? There are no discernible

boundaries or limits beyond which the

power might not be exerted provided only

that the Court were made to feel that

the exigency of the moment was sufficient-

ly serious to justify the action. It

seems to us that the exercise of such a

power by the courts is indeed unchecked,

and that it cannot be said to fall within

any relaxation of the doctrine of the

separation of powers that has thus far

been countenanced, See generally Gib-

bons, "The Interdependence of Legitim-

acy: An Introduction to the Meaning of

Separation of Powers," 5 Seton Hall L.

-121-

Rev. 435 (1974); Wright, "The Role of

the Supreme Court In A Democratic Soc-

iety--Judicial Activism or Restraint?,"

54 Cornell L. Rev. 1 (1968).

Quite apart from these compelling doc-

trinal considerations which work against

the majority's remedy, we would point out

that the federal decisions relied upon to

support the existence (much less the ex-

ercise) of the judicial power to redis-

tribute and de facto appropriate funds,

ante at 352, 339 A.2d at p. 203, are not

in point. The separation of powers is

an intra-governmental concept, not an

inter-governmental one. It refers to

the allocation of power within a partic-

ular sovereignty or government, whether

-122-

state or federal. Cf. Baker v. Carr,

369 U.S. 186, 210, 82 S.Ct. 691, 706,

7 L. Ed. 2d 663, 681-82 (1962). But the

federal cases cited in the majority

opinion all concern evaluations of the

deeds or practices of another govern-

mental entity not on the same level with

the federal judiciary, i.e., a state or

subdivision thereof.” In not one case

cited by the majority did affirmative

conduct or idleness of a coordinate,

co-equal branch confront the federal

courts, The restraint normally imposed

on the exercise of judicial power by the

separation of powers doctrine is thus

lacking in those instances, The sole

decision mentioned by the majority

-123-

involving this Court and a co-ordinate

branch of government, Jackman v. Bodine,

43 N.J. 453, 205 A.2d 713 (1964), simply

reiterates the "one-man, one-vote" prin-

ciple etched into the law by the Supreme

Court in Baker v. Carr, supra, and

Reynolds v. Sims, 377 U.S. 533, 84 S.Ct.

1362, 12 L.Ed. 2d 506 (1964). Measuring

the consistency of state activity against

the command of the federal Constitution

does not raise the spectre of the sepa-~

ration of powers. Nor were what Mr.

Justice Stewart has characterized as

the “intractable economic, social, and

even philosophical problems" of a

remedy, Dandridge v. Williams, 397 U.S.

471, 487, 90 S.Ct. 1153, 1163, 25 L.Ed.

-124-

2d 491, 503 (1970), so intense in Jackman

as the problems generated by this Court's

act of reallocating funds in the case at

bar. And if the cited authorities re-

present what the majority characterizes

as “emerging modern concepts as to jud-

icial responsibility to enforce constit-

utional right," ante at 352, 339 A.2d at

p. 203, we suggest those concepts should

for now be permitted to remain in their

"emerging" stage rather than receive fur-

ther nourishment from imprudent and

untimely judicial activism.

Moreover, as the majority opinion points

out, there is a second provision of the

New Jersey Constitution which is also

applicable. Article VIII, $11, TM, in

pertinent part reads as follows:

-125-

No money shall be drawn from the this proposed encroachment upon the

State treasury but for appropria-

tions made by law. All moneys

for the support of the State govern-

ment and for ail other State purposes

as far as can be ascertained or

reasonably foreseen, shall be pro-

varus for in one general appropria- 3 Court should exercise self-restraint.

tion law covering one and the same : ,

fiscal year; * * *. :

prerogative of another branch of govern-

ment.

Other reasons as well suggest that the

: Since this Court's decision several years

i £ nd explicit t ,

Again, we face a specitic a P ago there has been no lack of energetic

constitutional prohibition standing in and thoughtful attention given to the

the way of the action sought to be problem we are considering. It has been

undertaken. the almost constant concern and preoccu-

We recognize that it is difficult to pation of the Legislature and of the

P . b - . °

deal in terms of constitutional abso Commissioner of Education. While these

lutes. Constitutional interpretation considerable efforts have thus far been

is a delicate, sensitive and flexible . unsuccessful, we should nevertheless

: nt . . .

process. Yet we cannot at the prese await their fruition. At the very least

t

time foresee a state of affairs or se the step here contemplated should not

of circumstances which would justify be taken before anyone yet knows what

-126- 1 27-

° 5 a - n7 " ... 22.8 ° °

is meant by "a thorough and efficient a judicially granted increase in state

education. The elusive concept has many aid beyond the amovnt set by the Legis-

ingredients of which fiscal considera- lature, just as there should be a find-

. tions are but one. No one knows today . ing of overabundance of funds before

which school districts in the State may invoking a judicially-mandated decrease.

or may not be fully meeting their con- Finally, we ackrowledge, that our posi-

stitutional obligations. This point is tion of restraint may very well be at

made clear in the thoughtful and pene- odds with what may be seen as the most

trating editorial entitled "Courts expeditious and efficient method of

cannot Encroach upon the Powers Belong- achieving final resolution of this

ing to the Executive or Legislative troublesome case: exercise of the Court's

Cc . W ‘ : 2 a

New Jersey Law Journal on April 24, 1975. the majority does today, the recessary

; (98 N.J.L.J. 356). Surely, all const- , financing. But restraint derived from

itutional restraints aside, as to any a perceived limitation on the judicial

particular school district, there should power at this moment does maintain some

first be a determination of legitimate semblance of a working balance between

fiscal insufficiency before supplying

~129-

-128-

our three branches of government. ilir.

rT

Justice Brandeis once obser’ed:

The doctrine of the separation of

powers was adopted * * * not to

promote efficiency but to preclude

the exercise of arbitrary power.

The purpose was not to avoid fric-

tion, but, by means of the inevit-

able friction ircident to the

distribution of the governmental

powers among three departments, to

save the people from autocracy.

.

(livers v. United States, 272 U.S.

52, 293, 47 §.Ct. 21, 85, 71 L.Ed.

150, 242-43 (1925) (dissenting

opinion) .)

This doctrine deserves more than the

ceremonial bow given it by the majority

ei route to its discovery o¢ the requi-

site authority to act. This power it

draws not from the Constitution but

from a conviction that since it must

act, it must therefore also have the

-130-

power to act. The present circum-

stances do not yet compel us to find that

we must, out of sheer necessity, have that

power. While ours is an imperfect reso-

lution, it better preserves for the

future the integrity of the institutions

of this government.

-131-

Footnotes

1. In the course of his opinion for the

Court, Chief Justice Vanderbilt had this

to say:

The doctrine (separation of powers)

* * * has not only been accepted

as a cardinal principle of American

constitutional law but has been relied

upon from our earliest days as a nation

as a fundamental and indispensable

bulwark against despotism. * x

Lar@ Acton's aphorism merits quotation

at this point: "Power tends to corrupt

and absolute power corrupts absolutely."

Acton: zssays ou Freedom and Power

(1948). The doctrine of the separation

of powers is the great contribution of

Anglo-American Lawyers to the preven-

tion of absolutism and the preserva~

tion of the rights of the individual

against the state. (2 NJ. at W-

64, 66 A.2d at 730.)

2, The Court's reliance on Mills v. Bd.

of Educ., 348 F.Supp. 866 (D.D.C. 1972)

is misplaced. In Mills the District

Court found a violation of equal pro-

tection in the school district's failure

to provide an education for mentally

handicapped children. The Board of

Education asserted that no funds had

-132-

been appropriated by Congress for that

purpose. We suggest that the Court was

not persuaded by that contention because

it was obvious that Congress intended no

such restricted use of the appropriated

funds and the Board was simply misin-

terpreting the appropriation law.

However, even assuming the majority's in-

terpretation of Millis is correct, we take

notice of the fact the defendants there

were not the executive and legislative

branches of the federal government, but

rather the Board of Education and the

Commissioner of the District of Colum-

bia. And they were directed merely to

redistribute the funds made available

to them.

-133-

KENNETH ROBINSON, an infant by

his parent and guardian ad

litem, ERNESTINE XOBINSON,

et als.,

Plaintiffs-Respondents, :

-vs- :

: ORDER

WILLIAM T. CAHILL, Governor of :

the State of New Jersey,

et als.,

Defendants-Appellants.

On April 3, 1973, this court filed

its opinion (62 N.J. 473) in the above

captioned cause (which constituted its

judgment, R. 2:11-3(b)) modifying the

judgment of the Superior Court, Law

Division, Hudson County and affirming

said judgment as so modified, Said

opinion generally held that the present

system of maintaining and supporting

-134-

‘

-

PS

e

be

:

%

ee

.s

ne

»_

aw

te

te

‘)

oe

z

&

,

5

public elementary and secondary school

education in this state is unconstitut-

ional because it does not conform to the

state's obligation imposed by Art. VIII,

84, , par. 1 of the New Jersey Constitution,

The court reserved decision on the sub-

ject of remedies and sought the further

views of the parties. After receiving

the same, it filed a further opinion on

June 19, 1973 (63 NJ. 196), concluding

as follows:

* * *It is our view that the Court

should not disturb the statutory

scheme unless the Legislature fails

to enact, by December 31, 1974,

legislation compatible with our

decision in this case and effective

no later than July 1, 1975. We

withhold ruling upon the question

whether, if such legislation is not

so adopted, the Court may order the

distribution of appropriated moneys

toward a constitutional objective

-135-

notwithstanding the legislative

directions.

We retain jurisdiction. Any party

may move for appropriate relief,

before or after December 31, 1974,

if new circumstances so warrant.

No such legislation was enacted by

December 31, 1974, although efforts to

that end continued through said date.

The matter therefore now returns to this

Court for the ordering of appropriate

remedies to effectuate the court's orig-

inal decision.

The above numbered motions have been

filed with sundry objects. Some seek

injunctions with respect to, and/or re-

distribution of, some or all of such

funds as may be appropriated by the

Legislature as various forms of state

-136-

aid to local school districts for the

school year commencing July 1, 1975 (none

have yet been appropriated); others seek

leave to intervene or to participate as

amici curiae to present their views thereon

and still others seek action on miscellan-

eous matters,

Upon consideration of all said motions

and the briefs and aceempanying docu-

ments, it is on this 23 day of January,

1975, DETERMINED AND ORDERED as follows:

1. The motion of the defendants The

President of New Jersey Senate and the

New Jersey Senate for a rehearing of the

case (M-475) is denied. The motion of

defendants Speaker of the General

Assembly and the General Assembly (M-521)

-137-

for order in aid of judgment is denied.

2. The motions of petitioners Christ-

iansen, et als. "for an extention of time

of thirty (30) days to allow petitioners

to intervene and to file a petition for

reharing'"’ (M-453 and 454) are denied.

3. All school districts must, even

under recent legislation extending time-

table dates, commence within a very few

days the process of adopting budgets for

the school year 1975-76, arraning for

elections and attending to other matters

relevant thereto and must be advised prior

thereto of the amount of state aid funds

of various categories estimated to be

received during said school year. Any

injunction against the distribution of

-138-

said funds, or part thereof, and/or any

redistribution of the same, on a dif-

ferent basis than now prescribed by law,

while benefitting the local property tax

situation in some municipalities, would

in the case of many others radically in-

crease the amount to be raised by local

taxation or require substantial reduction

of the educational program. The fact

that there will be no legislation conm-

patible with the Court's decision became

certain only a very short time ago and

the court considers it would be inequi-

table and, indeec, chaotic as to many

school districts to effect financial

changes for the 1975-76 school year at

this late date and on such short notice,

-139-

ets

Therefore, the court will order no is denied without prejudice to renewal

changes in the present statutory scheme if the subject matter becomes relevant

for the school year 1975-76 and defendant at a later date.

Commissioner of Education may immediately 5 : 5. The court will hear oral argument

, advise all school districts of the amount . on March 18, 1975 at 10:00 A.M. on the

of estimated state aid funds for said

year based on present law.

4. Consequently, plaintiffs’ motion

for relief (M-448), alternate motion for

relief (M-449) and second alternate

motion for relief (M-450) are denied and

motion of defendant Governor Brendan T.

Byrne (successor to defendant William T.

Cahill) for order in aid of judgment

(M-452) is denied. No further motions

for relief need be filed by any party.

Plaintiffs' motion for discovery (M-451)

-140-

os

following subjects as related to relief

with respect to the school year commen-

cing July 1, 1976 and years thereafter:

a. The method of determination of

the definition of "a thorough and

efficient system of free public schools,"

of the translation of that definition

into financial terms and of the ap-

plication thereof (including whether

such definition should be administra-

tively applied to each school district

separately, to groups of districts

-141-

based on particular characteristics or

equally to all).

b. The extent of the power of the

court to order relief from, or changes

in, the present statutory financing

scheme on a temporary or permanent

basis in order to assure the meeting

of the state's obligation to implement

such system as defined.

c. To what extent and in what par-

ticular ways the court should exercise

such power.

d. Whether the covrt should appoint

a special master, to hear the views of

the parties, including especially those

of defendant Commissioner of Education

and defcrdant State Board of Education,

~142-

and the amici curiae and reccive from

the parties any evidence deemed rele-

vant, and to make recommendations to

the court as to said definition and its

application, the power of the court, and

its exercise, in order that a final

determination as to remedies may be made

by the court in sufficient time that

every school district may know by

October 1, 1975 what the state aid

situation will be as to it, as far as

practicable, for the school year 1975-

77.

6. In order that said oral argument

may be o* manageable proportions in

view of the large number of parties and

movants for intervention or participation

-143-

as amici curiae, the court will hear oral

(1) Wew Jersey School Boards Assoc~-

argument onlv on behalf of the following:

iation, by one attorney (H-463) ;

a. the named parties, i.e., the plain-

(2) New Jersey Education Association,

’ tiffs by one attorney; the Governor pro

et als., by one attorney (M-476);

se or by his attorney; the President of

| (3) The following school districts

the Senate and the Senate by one attotney; ,

or municipalities claiming to be sub-

the Speaker of the General Assembly and

stantially injured by any redistri-

the General Assembly by one attorney; the

bution of state aid funds: Township

Attorney General for the Commissioner of

of Livingston (M-470); Montclair,

Education, the Department of Education

Berkeley Ileights, Chatham Township,

and the State Board of Education;

New Providence, Rumson, Sandyston-

b. those amici curiae who have pre-

Valpack and Summit (M-474); Millburn

viously participated in oral argument

(M-498); Avon-by-the-Sea and Belmar

herein wio may wish to be heard and so

(M-499); Englewood and the City of

advise the Clerk;

» Englewood (M-5il); Morris School

c. The following present petitioners

District (M-512); Lyndhurst (M-514) ;

who are hereby granted permission to

Mendham Township (M-522), and Mayor

participate as amici curiae:

-144- | -145-

en?

of the Borough of Carlstadt (M-523), by

one attorney to be selected by the attor-

neys for said districts (in the absence

of such agreement, there will be no oral

argument on behalf of such districts).

7. All the persons, organizations

and entities named in paragraph 6 hereof

may, if desired, file and serve on all

other parties and amici curiae briefs

additional to those already on file by

February 24, but limited to the subjects

set forth in paragraph 5 hereof. Any

briefs in reply thereto shall be filed

and similarly served by March 3.

8, Any member or members of the

Senate or Ceneral Assembly in disagree-

ment with the position taken by counsel

for those bodies may, pro se or through

-146-

attorney, file and serve upon the same

persons and by the same datc, briefs and

statements of his, her or their views

upon the same subjects, all in accordance

with paragraph 7 hereof, The motions of

petitioners Russo, et als (M-513) and

Greenberg, et als (M-515) are granted to

such extent.

9, The motions of the following, to

the extent only of the allowance of

participation as amici curiae, are

granted, limited to the filing of briefs

on the same basis as set forth in para-

graph 7 hereof: City of Newark (M-432);

Pleasantville Taxpayers Association,

et als (M-469); New Jersey Ecucation

Reform Project of the Greater Newark

-147-

Urban Coalition (M-4/1).

10. All motions to intervene as a

party or otherwise participate are

denied except to the extent hereinbefore

set forth.

11. No further applications for in-

tervention or participation will be

considered.

WITNESS, the Honorable Richard J.

Hughes, Chief Justice, at Trenton,

this 23rd day of January, 1975.

s/ FLORENCE R. PESKOE

Clerk

Justice Pashman disagrees with cer-

tain portions of the decretal part of

the above order and is filing a memoran~

dum stating his views.

-148-