njspotlight.com - Local Say for Charters Continues to Dog Proposed Measures...As charters expand into suburbs, local districts want to approve any new schools ..."Jasey [Assemblywoman Mila Jasey, who is sponsoring her own Authorizer bill]said this issue could be risky for the governor, given that much of his Republican base is in suburban communities where the tensions are highest. She said in many of those places, communities have already become quite polarized, and she pointed out that she is attending a community forum tonight in Christie’s hometown of Livingston that will center on two charter schools proposed to serve the district’s students..."

Star Ledger - Braun: N.J. Supreme Court lacking available justices to rule on school financing

Published: Monday, May 16, 2011, 9:50 AM     Updated: Monday, May 16, 2011, 10:16 AM

By Bob Braun/Star-Ledger Columnist The Star-Ledger

TRENTON — The New Jersey Supreme Court is soon expected to render a critically important decision on school finance, a decision that may be clouded by the reduced number of justices hearing the case and questions of why some members of the panel disqualified themselves from sitting in judgment and why one — Associate Justice Helen Hoens, whose husband works for the governor — did not.

"This is a very tricky set of circumstances," says Robert Williams, a professor at Rutgers Law School in Camden who studies state constitutional law. "A lot is at stake."

One problem is simply numbers. The seven-member court could not even hear the challenge to the administration’s $1.6 billion aid cut without a quorum of five and it would not have a quorum without the temporary appointment of Appellate Judge Edwin Stern.

That creates the real possibility the decision — one certain to create controversy no matter which way it goes — might be made by only three justices, less than a majority.

"If it’s a 3-0 decision, or even a 3-2 decision, I’m sure the governor will use those numbers against the court if it goes against him," says Paul Tractenberg, a constitutional law professor at Rutgers Law School in Newark.

Williams agrees a decision supported by so few justices will have "lesser precedential value in the future" than a ruling adopted by a unanimous court or a clear majority.

"It doesn’t give the governor any more of a right to defy a court order, but it does mean the decision might not withstand challenges in the future," says Williams. Gov. Chris Christie has said defying the court is an "option" he would not dismiss.

But the reasons for the reduced number of justices also create a problem — even a mystery. The full complement of the court was reduced from seven to six when Christie refused to reappoint Associate Justice John Wallace, its only African-American. The Democrat-controlled state Senate refused to conduct hearings on the woman the governor chose to replace him.

Chief Justice Stuart Rabner recused himself. He was former Gov. Jon Corzine’s counsel and attorney general and helped write the School Aid Reform Act, the law under review.

Then, Associate Justice Virginia Long, who presided over one set of arguments in the latest Abbott vs. Burke case and voted to remand it to Superior Court Judge Peter Doyne, mysteriously recused herself after Doyne ruled the state failed to support its case that $1.6 billion in school aid cuts would not deny students their rights.

Winnie Comfort, court spokeswoman, said Long would not explain her recusal.

"The justices make the decision themselves and they do not reveal why," said Comfort. She added, "They are always very careful to make sure there are no appearances of conflict."

That reduced the number of permanent justices hearing the case to four, one short of a quorum. If Stern were not on the panel, the court could not even have entertained the motion brought by the Education Law Center in Newark to restore the reduced aid.

But Long’s decision to disqualify herself raises questions about another justice’s failure to do it. Associate Justice Helen Hoens, on the court since 2006, faces two troubling facts — she is up for tenure reappointment during Christie’s first term and her husband, former Star-Ledger reporter Robert Schwaneberg, works in Christie’s office as a health policy analyst.

The governor has the power to reappoint Hoens — and, as in the case with Wallace, Christie has said he wants to reshape the court to his own liking. He also has the power to fire Schwaneberg who holds a political, rather than a protected civil service, appointment.

"We don’t know why Long recused herself," says Tractenberg, "but certainly the circumstances surrounding Hoens’ participation creates issues."

Comfort says Hoens will not talk about her decision. Schwaneberg referred all calls to Michael Drewniak, Christie’s spokesman. Drewniak refused any comment.

While Tractenberg says Hoens’ participation raises the possibility of a conflict, Williams is not sure. "I don’t think it’s a problem but I can’t really explain why," he says.

How the decision was reached could become as much of a controversy as the decision itself. The difference, according to G. Alan Tarr, director of the Center for State Constitutional Studies at Rutgers-Camden, is, while the ruling can be read by everyone, no one besides the justices themselves know why Long disqualified herself and Hoens didn’t.

"The justices sit in judgment of themselves," says Tarr, who adds that this is a problem in other states as well as New Jersey.

"They conduct their own trials in private, make their own decisions and we may never know how or why."