# Appendix — Klein v. Robinson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1975
- **Citation:** 423 U.S. 913

## Text

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

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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-

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0928%3A3. Public record. Not legal advice.