Rosalie Bacon v. New Jersey State Department

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2452-14T1
ROSALIE BACON, individually and on
behalf of G.P., Z.P., J.B., M.B.,
D.B., and Z.H.; JOSEPH BARUFFI,
individually and on behalf of J.B.;
ELIZABETH CULLEN, individually and
APPROVED FOR PUBLICATION
on behalf of T.C.; EDIE RILEY,
individually and on behalf of S.R.; November 6, 2015
ARNETTA RIDGEWAY and CHRISTOPHER
GLASS, individually and on behalf of APPELLATE DIVISION
J.G., F.G., and D.G.; COMMERCIAL,
HAMMONTON, LITTLE EGG HARBOR, MAURICE
RIVER, OCEAN, QUINTON, UPPER DEERFIELD,
WALLINGTON, BUENA REGIONAL, CLAYTON,
EGG HARBOR CITY, LAKEHURST, LAKEWOOD,
LAWRENCE and WOODBINE SCHOOL DISTRICTS,
Plaintiffs-Appellants,
v.
NEW JERSEY STATE DEPARTMENT
OF EDUCATION,
Defendant-Respondent.
____________________________________
Argued September 30, 2015 – Decided November 6, 2015
Before Judges Alvarez, Haas and Manahan.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket No. L-
1989-14.
David G. Sciarra argued the cause for
appellants (Education Law Center and Jacob &
Chiarello, LLC, attorneys; Mr. Sciarra and
Theresa S. Luhm, on the briefs).
Donna Arons, Deputy Attorney General, argued
the cause for respondent (John J. Hoffman,
Acting Attorney General, attorney; Michelle L.
Miller, Assistant Attorney General, of
counsel; Ms. Arons, on the brief).
The opinion of the court was delivered by
HAAS, J.A.D.
Plaintiffs, a group of fifteen school districts, and
parents and children from those districts, appeal from the Law
Division's December 15, 2014 order dismissing their complaint.
Plaintiffs brought the complaint as a summary action "to enforce
agency orders" under Rule 4:67-6(a)(2). Plaintiffs sought to
compel defendant New Jersey State Department of Education (the
Department) to provide "the funding and high quality preschool
provided by the School Funding Reform Act of 2008 [SFRA], along
with facilities improvements and other measures . . . ."
The trial judge ruled that plaintiffs could not pursue the
summary action under Rule 4:67-6(a)(2) because the district-
specific needs assessments which they sought to enforce did not
require the Department to fully fund the districts under the
SFRA or otherwise provide for specific relief and, therefore,
there were no orders capable of being enforced under the rule.
Having carefully reviewed the record and arguments on appeal, we
affirm.
2 A-2452-14T1
I.
In December 1997, twenty school districts, known as the
"Bacon districts,"1 filed a complaint in the Chancery Division
against the Department, the Commissioner of the Department (the
Commissioner), and several State officials. Bacon v. N.J. State
Dep't of Educ., 398 N.J. Super. 600, 606 (App. Div. 2008),
certif. denied, 210 N.J. 218 (2012). The districts were "rural
and property-poor" and sought a declaratory judgment that the
Comprehensive Educational Improvement and Financing Act of 1996,
N.J.S.A. 18A:7F-1 to -42 (CEIFA), failed to provide a thorough
and efficient education to their students, in violation of the
New Jersey Constitution. Ibid.
In their complaint, the Bacon districts sought State
"funding equivalent to that provided to the State's richest
school districts." Ibid. Essentially, the Bacon districts
wanted to be funded in the same manner as their urban
counterparts, the Abbott districts. Id. at 606-07. Under
CEIFA, all districts with concentrations of impoverished
students received State aid to address the unique educational
difficulties that face such students. Id. at 605. All
districts classified as Abbott districts received an additional
1
The number of districts involved in this litigation has
continuously varied.
3 A-2452-14T1
type of aid, known as parity aid, which was "intended to support
the per pupil expenditure level of the Abbott [d]istricts at the
level of" New Jersey's wealthiest districts. Ibid. (citing
Abbott v. Burke, 153 N.J. 480, 567 (1998) (Abbott V)).
In February 1998, the parties entered into a consent order
and jurisdiction was transferred to the Commissioner, who
transmitted the matters to the Office of Administrative Law.2
Id. at 607. A bifurcated hearing was held before an
Administrative Law Judge (ALJ). Ibid. At the first phase of
the hearings, the ALJ determined that the districts had been
using their "CEIFA funding appropriately." Id. at 608.
During the second phase of the hearings, the districts
needed to show "that educational deficiencies existed and the
deficiencies could not be remedied, under current law and
funding levels, by different programmatic and fiscal choices."
Ibid. The ALJ determined that five districts needed additional
funding; however, the Commissioner subsequently found that only
one district needed additional funding and that CEIFA funding
was sufficient with respect to the other districts. Ibid.
2
After the Commissioner and the Department filed motions to
dismiss the petition for lack of standing, "the petition was
amended to add several students attending some of the school
districts and their parents." Id. at 607.
4 A-2452-14T1
Eight districts ultimately appealed the Commissioner's
decision to the State Board of Education (the Board). Id. at
608-09. The Board issued its final decision on January 4, 2006.
Id. at 609. Overall, the Board found that Bacon district
students were "not being afforded a thorough and efficient
education." Ibid. Additionally, the Board determined that "the
children in [the Bacon districts] had 'special needs arising
from the socioeconomic conditions in the districts[,]'" which
were not being addressed by the available programming. Ibid.
The Board "recognize[d] that CEIFA has provided these districts
with more fiscal resources than ha[d] been available to them
previously" and that "progress ha[d] been made under CEIFA to
improve the quality of the education" in the Bacon districts.
In spite of those gains, the Board still concluded that the
students were being deprived of a thorough and efficient
education. The Board also determined that CEIFA had created a
fragmented funding system that failed students statewide, not
just in the Abbott and Bacon districts.
After determining that there were constitutional violations
in the Bacon districts, the Board examined the remedies that
would best address the specific needs of those districts.
Significantly, the Board rejected the idea
that merely providing the [Bacon] districts
with the same fiscal resources that are
5 A-2452-14T1
provided to the Abbott [d]istricts will
ensure that the students of these districts
are in fact afforded the educational
opportunity to which they are entitled.
While poor, the districts involved here are
not identical to the districts that have
been classified as Abbott [d]istricts. The
very fact that they are not urban means that
they face a unique set of circumstances that
are different from those confronting the
poor urban districts.
As an alternative to providing the Bacon districts with the same
funding as Abbott districts, the Board directed the Commissioner
to supervise the Department in "develop[ing] a design for a
needs assessment to be performed in" the Bacon districts that
would focus on the unique problems that confronted the
individual districts.
In response, the Commissioner "recommended awaiting
executive and legislative action on a new funding formula" then
being considered by the Governor and the Legislature. Bacon,
supra, 398 N.J. Super. at 613. The new funding formula was
enacted in 2008 as the SFRA, N.J.S.A. 18A:7F-43 to -63. Ibid.
Whereas CEIFA created a fragmented funding system, SFRA removed
references to Abbott districts, id. at 613, n.10, and applied
one uniform funding formula to all 618 school districts in New
Jersey. Id. at 615. Under SFRA:
[T]he Department [would] calculate how much
it costs to meet the constitutional mandate
of affording every student in this [s]tate a
thorough and efficient education. The State
6 A-2452-14T1
then [would] base[] its share of the
requirement by the wealth of a district;
poorer districts [would] get a higher
percentage of their educational budget from
the State.
[Ibid.]
Before SFRA was enacted, the Bacon districts appealed the
Board's 2006 decision to this court. Id. at 612. Plaintiffs
requested that the court "grant them status comparable to Abbott
districts and award[ing] them the same financial resources
provided to their urban counterparts . . . ." Id. at 615. We
declined to provide such relief. Instead, we deferred to the
Board's approach of individualized needs assessments, referring
to interim judicial funding as "a last resort." Id. at 616-17.
We felt it particularly appropriate to avoid a judicially-
compelled funding remedy given the recent enactment of SFRA.
Id. at 617. As a result, we "direct[ed] the Commissioner to
comply with the Board's final decision and proceed forthwith to
design and perform a needs assessment of each of the Bacon
districts . . . and . . . to further determine whether . . .
[SFRA's] remedial measures afford students in the Bacon
districts" a thorough and efficient education. Id. at 618.
In compliance with our directive, the Department designed
and implemented a comprehensive, multi-phased needs assessment
in 2008. The needs assessments culminated in a report issued by
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the Commissioner on September 14, 2009. The report consisted of
sixteen individualized assessments of each of the Bacon
districts that summarized the results of site visits, evaluated
the adequacy of the facilities, evaluated the effect of SFRA on
the district's funding, and provided conclusions and
recommendations for each district.
As directed by the Board, the needs assessments focused on
the unique issues that affected each individual district at that
time. With respect to SFRA, the assessments detailed the amount
of aid that each district actually received for fiscal year
(FY)08-09, the anticipated level of funding for FY09-10, and how
the districts intended to use the funding. Notably, the needs
assessment lacked a global statement about all of the Bacon
districts or whether fully funding SFRA would provide the Bacon
district students with a thorough and efficient education.
Pursuant to Rule 2:4-1(b) and Bacon, supra, 398 N.J. Super.
at 619, plaintiffs could have appealed the needs assessments.
However, no appeal was filed.
The State reduced SFRA funding for the 2011 fiscal year.
Abbott v. Burke, 206 N.J. 332, 344-46 (2011) (Abbott XXI). On
September 2, 2011, the districts that had appealed the Board's
decision to this court filed a motion to enforce litigants'
rights pursuant to Rule 1:10-3, seeking an order directing that
8 A-2452-14T1
the Bacon districts receive full funding under SFRA. In a
January 12, 2012 order, we denied the motion because "[t]he
specific relief requested on this motion to enforce litigant's
rights . . . [was] neither encompassed nor contemplated in our
[previous] decision . . . ." We further stated:
To the extent movants' instant application
seeks redress from the September 14, 2009
final administrative decisions of the
Commissioner . . . as inconsistent with, or
violative of, the Bacon holding, their
recourse was a direct appeal therefrom
. . . . To the extent movants seek[] to
enforce, or compel compliance with, any
aspect of the September 14, 2009
administrative agency determinations, their
recourse is by way of summary proceeding
pursuant to Rule 4:67-6.[3]
Plaintiffs took no further action until approximately
September 8, 2014 when fifteen of the original twenty Bacon
districts filed a verified complaint and order to show cause
under Rule 4:67-6 in the Law Division. Plaintiffs framed the
complaint as:
an action to enforce final determinations by
[the Department] . . . that the funding and
high quality preschool provided by [SFRA],
along with facilities improvements and other
measures, will afford students in [Bacon]
districts a thorough and efficient education
. . . remediating the constitutional
violation found by [the Board] and upheld by
3
On May 7, 2012, the Supreme Court denied plaintiffs' petition
for certification from this order. Bacon v. N.J. State Dep't of
Educ., 210 N.J. 218 (2012).
9 A-2452-14T1
the Superior Court, Appellate Division
. . . .
The relief sought by plaintiffs was broad. Plaintiffs
requested an order directing the Department to (1) calculate the
aid that would be provided to the Bacon districts under SFRA for
the 2014-15 school year and subsequent years, send those
calculations to the Legislature, "and seek supplemental
appropriations as may be necessary to ensure the provision of
necessary funding"; (2) calculate the preschool aid that the
Bacon districts would receive under SFRA to allow them "to
implement high quality preschool for all three- and four-year
olds . . . no later than the 2019-20 school year"; (3)
"[d]evelop and implement district-specific plans for facilities
improvements and financing as may be necessary and consistent
with the Educational Facilities Construction and Financing Act
(EFCFA), N.J.S.A. 18A:7G-1 et seq., commencing in the 2015-16
school year"; (4) "[u]ndertake such other district-specific
remedial measures as identified in the 2009 assessments or as
otherwise necessary to ensure the effective and efficient use of
funds in the districts' budgets;" (5) "[a]ward attorneys' fees
to [plaintiffs] pursuant to N.J.S.A. 10:6-2[(f)]"; and (6) grant
plaintiffs "[s]uch other relief as the [c]ourt may deem
appropriate and necessary to ensure remediation of the
constitutional violation found in this litigation."
10 A-2452-14T1
On November 7, 2014, the Department filed a motion to
dismiss the complaint for failure to state a claim. The trial
judge granted the Department's motion on December 15, 2014.
In her oral decision, the judge focused on whether
plaintiffs could use a Rule 4:67-6 summary proceeding to obtain
their requested relief. She characterized plaintiffs' requested
relief as "sweeping," and expressed concern about the limited
record in this case compared to the records before the Supreme
Court in the Abbott cases, specifically Abbott XXI.
With respect to the procedural issue, the judge noted that
Rule 4:67-6 is a "very narrow rule" that was "never intended to
supplant other jurisdictional exercises by [S]tate agencies."
Specifically, the judge highlighted that "there was never any
finding as to what level of funding under SFRA was essential to
provide a [thorough and efficient education] in [the Bacon]
districts" in the 2009 needs assessments. The judge further
noted that the needs assessments lacked "directory language," an
"omnibus order," or a global conclusion "that full funding of
SFRA is necessary for a thorough and efficient education in each
one of the Bacon districts." As a result, the judge determined
that a summary proceeding under Rule 4:67-6 was not an
appropriate vehicle to obtain plaintiffs' requested relief and
11 A-2452-14T1
granted the Department's motion to dismiss. This appeal
followed.
II.
We employ a plenary standard of review over a trial court's
decision to grant a Rule 4:6-2(e) motion to dismiss for failure
to state a claim upon which relief can be granted. Rezem Family
Associates, L.P. v. Borough of Millstone, 423 N.J. Super. 103,
114 (App. Div.), certif. denied, 208 N.J. 366 (2011). The
narrow issue presented in this case is whether plaintiffs
properly brought this action under Rule 4:67-6(a)(2). For the
following reasons, we conclude they did not and that therefore
the trial judge properly dismissed plaintiffs' complaint.
Under Rule 4:67-6, an administrative agency or a non-agency
party can institute a summary proceeding in Superior Court to
enforce an agency order. If the plaintiff is a non-agency
party, then the rule applies to "all such enforcement actions
brought by a party to the administrative proceeding in whose
favor a written order or determination was entered affording
that party specific relief." R. 4:67-6(a)(2). (emphasis added).
Rule 4:67-6 exists "to provide judicial remedies in aid of
agency orders where necessary." In re A-1 Jersey Moving &
Storage, Inc., 309 N.J. Super. 33, 40 (App. Div. 1998).
Additionally, parties cannot challenge the validity of an
12 A-2452-14T1
administrative order collaterally in a Rule 4:67-6 proceeding.
State Dep't of Envtl. Prot. v. Mazza & Sons, Inc., 406 N.J.
Super. 13, 23 (App. Div. 2009).
We have observed that Rule 4:67-6 enforcement actions are
analogous to "a motion for enforcement of litigant's rights
under Rule 1:10-3 in a judicial proceeding." Mazza, supra, 406
N.J. Super. at 29 (citing State Farm Mut. Auto. Ins. Co. v.
State of N.J., Dep't of Pub. Advocate, 118 N.J. 336, 344
(1990)). "The scope of relief in a motion in aid of litigants'
rights is limited to remediation of the violation of a court
order." Abbott XXI, supra, 206 N.J. at 371. Because Rule 4:67-
6 is the administrative counterpart to Rule 1:10-3, the scope of
relief that can be afforded to a party instituting a summary
enforcement action is similarly limited.
To be successful in pursuing a summary action under Rule
6:67-6, a litigant must show that there is a "specific and
unequivocal" order in place. Abbott v. Burke, 170 N.J. 537, 565
(2002) (Abbott VII) (LaVecchia, J., concurring in part and
dissenting in part). The order must afford the enforcing party
"specific relief." R. 4:67-6(a)(2). The litigant must also
show that the State agency "has failed to comply with the order
and that the court's assistance is necessary to secure
compliance." Mazza, supra, 406 N.J. Super. at 29.
13 A-2452-14T1
Applying these principles, we conclude that plaintiffs'
complaint failed to state a claim upon which relief could be
granted in a summary proceeding under Rule 4:67-6(a)(2). No
"written order or determination" was entered in their favor that
afforded them the "specific relief" they sought in their
complaint.
In their complaint, plaintiffs described the individual
September 14, 2009 needs assessments as "final determinations"
by the Department
that the funding and high quality preschool
provided by [SFRA], along with facilities
improvements and other measures, will afford
students in [the Bacon] districts a thorough
and efficient education . . . thereby
remediating the constitutional violation
found by [the Board] and upheld by the
Superior Court, Appellate Division . . . .
However, the structure of the needs assessments themselves belie
plaintiffs' arguments. The needs assessments consist of sixteen
distinct reports that focus on sixteen individual districts.
There is no overall report that draws conclusions about the
state of the Bacon districts as a group. To the contrary, as
the Board directed, the needs assessments attempt to identify
the unique issues that each district faced back in 2009.
The following examples illustrate the point. In the
Lawrence School District Needs Assessment, the Department
focused on the issues presented by that district's small size
14 A-2452-14T1
and recommended that the district pursue regionalization. On
the other hand, the Lakewood School District Needs Assessment
addressed the effect that the district's policy of courtesy
busing non-public school students had on its finances and
recommended that the policy be reconsidered. In the Buena
Regional Needs Assessment, the Department stated that the
district "must address the high personnel costs and loss of
productivity that results from teachers spending so little time
on instructional activities . . . ." The needs assessments for
the remaining districts set forth other district-specific
recommendations.
In spite of the fact that the sixteen needs assessments
sought individualized solutions to each district's unique
issues, plaintiffs requested sweeping, identical relief for all
of the Bacon districts. It is undisputed that the needs
assessments evaluated the effect of SFRA. However, plaintiffs
mischaracterize the import of those recommendations. In some of
the assessments, the Department identified that SFRA funding
would have a positive effect on the district. For example, in
the Lawrence School District Assessment, the Department noted
that:
although the SFRA and complementary
legislation . . . provide the tools that
will permit [the district] to improve
educational opportunities for its students
15 A-2452-14T1
and address its identified needs, the
extremely small size of the school district
poses significant challenges . . . .
Regionalization . . . will be critical to
addressing those challenges in this
district.
On appeal, plaintiffs attempt to extrapolate this statement
to apply to all the Bacon districts. However, the Department
did not reach similar conclusions for all of the Bacon
districts. Thus, there was no "specific order" that could be
enforced for all of the Bacon districts.
In the needs assessments, the Department's final
conclusions can be roughly grouped into three general
categories: (1) SFRA funding will continue to improve
educational opportunities; (2) SFRA funding will continue to
improve educational opportunities but regionalization may be
necessary; or (3) the district needs to better utilize available
funds. The recommendations of the needs assessments follow the
Board's original conclusion that the Bacon districts have
different needs and will ultimately require different solutions
than the Abbott districts.
Significantly, none of the needs assessments concluded that
fully funding the SFRA is necessary to ensure that students in
the Bacon districts receive a thorough and efficient education.
The needs assessments do not require the Department or the
Legislature to fully fund the districts under SFRA, or institute
16 A-2452-14T1
specific pre-school programs or building projects in the
districts.
Plaintiffs argue that the needs assessments are enforceable
because in Bacon, supra, 398 N.J. Super. at 618, we instructed
the Department "to further determine whether, in light of the
proven educational deficits already found by the Board, the
[SFRA's] remedial measures afford students in the Bacon
districts the thorough and efficient education to which they are
constitutionally entitled." According to plaintiffs, because
the Department was instructed on remand to use the needs
assessments to determine whether SFRA would remediate the
constitutional violation, the conclusions and recommendations in
the needs assessments are enforceable as an agency order.
However, as noted above, the needs assessments lack clear
findings about the remedial effect of the SFRA on the
constitutional violations that the Board originally identified.
If the Department failed to comply with our directive in Bacon,
supra, that the Commissioner determine whether SFRA provided the
Bacon districts with a thorough and efficient education,
plaintiffs' appropriate recourse was an appeal of the needs
assessments. While plaintiffs assert that "[i]n plain and
unequivocal language, [the Department] determined that the SFRA
provides adequate funding . . . to ensure the Bacon students
17 A-2452-14T1
[receive] a thorough and efficient education," that language is
not found in the needs assessments. The plain language of the
needs assessments cannot be construed as an administrative order
in plaintiffs' favor entitling them to full SFRA funding or any
of the broad relief sought in their complaint.
Furthermore, the needs assessments contain no directives.
As noted by the trial judge, the needs assessments lack an
"omnibus order." In a Rule 4:67-6 proceeding, the trial court's
powers are strictly limited to enforcement of an order. See
Mazza, supra 406 N.J. Super. at 23 (trial court cannot rule on
the validity of an agency order in a Rule 4:67-6 proceeding).
Without any directives or an omnibus order, there was nothing
for the trial court to enforce and plaintiffs' complaint was
therefore properly dismissed.
Plaintiffs make two additional arguments. First, they
assert their complaint was properly filed under Rule 4:67-6
because, in our January 12, 2012 order, we "instuct[ed]" them to
proceed in this fashion. We disagree. Contrary to plaintiffs'
assertion, the January 12, 2012 order was not an "instruction"
by this court to file a summary action under Rule 4:67-6, nor a
guarantee that any such action, if pursued, would be successful.
Instead, we simply made clear that plaintiffs' motion for an
order in aid of litigants' rights lacked merit.
18 A-2452-14T1
Plaintiffs also argue for the first time in their reply
brief that we should exercise our original jurisdiction in this
matter pursuant to Rule 2:10-5; declare that the Department has
violated New Jersey's Constitution by failing to ensure that
plaintiffs all receive full SFRA funding; and implement specific
remedies concerning future funding. We again disagree.
We generally decline to consider arguments raised for the
first time in a reply brief. L.J. Zucca, Inc. v. Allen Bros.
Wholesale Distribs. Inc., 434 N.J. Super. 60, 87 (App. Div.
2014) (citing Borough of Berlin v. Remington & Vernick Eng'gs,
337 N.J. Super. 590, 596 (App. Div.), certif. denied, 168 N.J.
294 (2001)), certif. denied, 218 N.J. 273 (2014). By failing to
raise their original jurisdiction argument in their initial
brief, plaintiffs have waived this contention.
Moreover, we exercise our original factfinding authority
under Rule 2:10-5 only "with great frugality and in none but a
case free of doubt." Tomaino v. Burman, 364 N.J. Super. 224,
234-35 (App. Div. 2003) (quoting In re Boardwalk Regency Corp.
Casino License Application, 180 N.J. Super. 324, 334 (App. Div.
1981), modified on other grounds, 90 N.J. 361 (1982)), (internal
quotation marks omitted), certif. denied, 179 N.J. 310 (2004).
This is not such a case. The record is wholly inadequate to
allow us to exercise our original fact-finding authority to
19 A-2452-14T1
review plaintiffs' claim that they are entitled to specific
levels of funding under SFRA.
Affirmed.
20 A-2452-14T1