(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the

interests of brevity, portions of any opinion may not have been summarized).

This opinion addresses plaintiffs’ motion under Rule 1:10-3 in aid of litigants’ rights based on the State’s

failure to fully fund the School Funding Reform Act of 2008 (SFRA), N.J.S.A. 18A:7F-43 to -63.

The schoolchildren who comprise the plaintiff class have been denominated victims of a violation of

constitutional magnitude for more than twenty years. Remedial orders were imposed to provide the education

funding and services required to ameliorate the class’s constitutional deprivation. The State has for decades

recognized the special status of that plaintiff class of pupils, and its compliance with this Court’s remedial orders

demonstrates its recognition that plaintiffs’ constitutionally based remedies have imbued them with status akin to

that given to wards of the State.

It was against that backdrop that the State applied to this Court two years ago, asking to be relieved of the

orders that required parity funding and supplemental funding for children in the so-called “Abbott districts” in

exchange for providing funding to those districts in accordance with SFRA. The State persuaded this Court to give

it the benefit of the doubt that SFRA would work as promised and would provide adequate resources for the

provision of educational services sufficient to enable pupils to master the Core Curriculum Content Standards

(CCCS). Accordingly, the Court granted the State relief from those remedial orders that bound it to the parity

remedy for the pupils from the Abbott districts, and authorized the State to implement in Abbott districts SFRA’s

level of funding. Abbott v. Burke, 199 N.J. 140 (2009) (Abbott XX).

The exchange of remedial orders correcting constitutional deprivations for the State’s alternative -- SFRA

funding -- did not alter the constitutional underpinnings of the replacement relief. The Court’s grant of relief in

Abbott XX came with the express caveats of required full funding and the mandatory retooling of SFRA’s formulaic

parts at designated mileposts in the formula’s implementation. When the Court granted the State the relief it

requested, it was not asked to allow, and did not authorize, the State to replace the parity remedy with some version

of SFRA or an underfunded version of the formula. In respect of the failure to provide full funding under SFRA’s

formula to Abbott districts, the State’s action amounts to nothing less than a reneging on the representations it made

when it was allowed to exchange SFRA funding for the parity remedy. Thus, the State has breached the very

premise underlying the grant of relief it secured with Abbott XX.

In resisting the plaintiffs’ present application, the State argues that the Court must defer to the Legislature

because the legislative authority over appropriations is plenary pursuant to the Appropriations Clause of the

Constitution. See N.J. Const. art. VIII, § 2, ¶ 2. Although it is true that past decisions of this Court have recognized

the Legislature’s authority to work a modification of other statutes through the adoption of an annual appropriations

act, a different question is presented here. The State seeks, through the legislative power over appropriations, to

diminish the Abbott districts’ pupils’ right to funding required for their receipt of a thorough and efficient education

after representing to this Court that it would not do so in order to achieve a release from the parity remedy

requirement. In such circumstances, the State may not use the appropriations power as a shield to its

responsibilities.

The funding to the Abbott districts in FY 2012 must be calculated and provided in accordance with the School Funding Reform Act of 2008. Relief is limited to the plaintiff class of children from Abbott districts for whom the Court has a historical finding of constitutional violation and for whom the Court has had specific remedial orders in place through Abbott XX.

1. The background to the education funding remedy in place at the time of the State’s application in Abbott XX begins with the 1990 decision in Abbott II, and shows the forbearance with which this Court awaited, for years, the State’s development of a constitutionally sound method of funding for disadvantaged pupils before specific remedial orders had to be imposed. In the fall of 2008, the State made application to the Court proudly bearing the message that it had created a funding formula -- SFRA -- based on core curriculum content standards that addressed the needs of disadvantaged students, thereby achieving constitutional compliance. Solely for purposes of considering the State’s application to alter the methodology for the provision of funding to the Abbott districts, the Court declared SFRA to be, presumptively, constitutionally adequate and valid to the extent that the record permitted its review.

The relief granted to the State was conditioned on two express mandates: that SFRA be fully funded; and that there be a “look-back” and retooling of SFRA after its first three years of implementation. The Court’s decision in Abbott

XX was a good-faith demonstration of deference to the other political branches’ authority, not an invitation to retreat from the hard-won progress that our State had made toward guaranteeing the children in Abbott districts the promis of educational opportunity. (pp. 14-28)

2. In the instant matter, after reviewing the parties’ briefs on the motion and hearing argument, the Court remanded to a Special Master to consider “whether school funding through SFRA, at current levels, can provide for the constitutionally mandated thorough and efficient education for New Jersey school children.” The remand order placed the burden on the State to demonstrate that the present level of school funding can provide thorough and efficient education as measured by the CCCS. The Special Master issued his opinion with recommendations to the Court on March 22, 2011. The Special Master concluded that the State failed to meet its burden to show that athorough and efficient education can be provided, consistent with the CCCS, through the levels of SFRA funding provided in the FY 2011 Appropriations Act. (pp. 28-33)

3. A Rule 1:10-3 motion is an appropriate vehicle for a party who alleges a violation of a judgment. This Court has

granted motions in aid of litigants’ rights in prior Abbott decisions where the State failed to act consistent with its

representations regarding the manner it claimed it would fulfill a mandate of this Court. The State’s decision to

underfund the SFRA formula for FY 2011 was an action that directly contravened the judgment in Abbott XX,

which had authorized the State to substitute full SFRA funding for the parity remedy in Abbott districts. The State

has breached the very premise underlying the grant of relief it secured with Abbott XX. Hence, the plaintiff class of

Abbott school children has every right to relief in aid of litigants’ rights based on the State’s failure to fully fund

SFRA in Abbott districts. (pp. 33-35)

4. The State claims that because the appropriation power is vested in the Legislature, N.J. Const. art. VIII, § II, ¶ 2,

this Court should defer to the appropriations choices made by the Legislature. The case law cited by the State to

support this position involves situations in which the suspension of other statutory enactments was at issue. It does

not follow that the Appropriations Clause authority to modify or suspend statutes that raise some expectation of

funding empowers the political branches to ignore judicial orders and decrees that specify a remedy to ameliorate a

historical finding of constitutional violation. The Court holds that the Appropriations Clause creates no bar to

judicial enforcement when, as here, 1) the shortfall in appropriations purports to operate to suspend not a statutory

right, but rather a constitutional obligation, 2) which has been the subject of more than twenty court decisions or

orders defining its reach and establishing judicial remedies for these plaintiffs for its breach, 3) where the harm

being visited is not some minor infringement of the constitutional right but a real, substantial, and consequential

blow to the achievement of a thorough and efficient system of education to the plaintiff pupils of the Abbott

districts, and 4) where the formula the State has underfunded was one created by the State itself, and made

applicable to the plaintiff pupils of Abbott districts, in lieu of prior judicial remedies, by this Court on application by

the State based on specific representations that the statutory scheme of SFRA would be fully funded at least as to the

Abbott pupils, and fully implemented as to those districts. (pp. 35-46)

6. The dissenters, without any historical or precedential support, attempt to place at issue the time-honored doctrine that majority rules. When this Court is constituted as a five-person Court, whether deciding a case or a motion, a vote of three persons has always been sufficient to determine the outcome of the matter. In the absence of a statute, rule, or constitutional provision on point, the default common-law principle governs in this case, as it has done in all other motion votes when the Court was acting on the basis of a mere quorum of five members. Here, the Court, acting with a five-member quorum, is taking its consistent approach with respect to the vote required for affirmative action on the pending motion in aid of litigants’ rights under Rule 1:10-3 by acting on the basis of the affirmative votes of three members. This is a straightforward application of a universal common-law norm. (pp. 52-58)

and analysis that majority rules in deciding a motion, but expressing the view that there was sufficient credible

evidence in the record before the Special Master to affirm a finding that the underfunding of 205 school districts

operating below their adequacy budgets, in violation of SFRA, deprived at-risk children of their right to a

constitutionally adequate education, and therefore he would order funding at the levels required under SFRA for

those 205 districts in the coming school year.

joins, expressing the view that, in the context of this motion in aid of litigants’ rights, three votes to grant relief are

insufficient because a minimum of four votes is required to grant a substantive motion and that, on jurisprudential

grounds, relief such as what is ordered here should not be granted on a 3-to-2 vote.

joins, expressing the view that plaintiffs’ motion must be denied for three principal reasons: 1) the evidence in the

record is insufficient to meet the high standard required for the extraordinary relief of an order in aid of litigant’s

rights; 2) there is insufficient support for the Special Master’s findings that less than full funding of the SFRA

formula prevented school districts from delivering a constitutionally adequate education; and 3) the relief demanded

of this Court treads on the constitutional prerogatives of the Legislature and the Executive branch.