Abbott v. Burke XXI (or is it XXII?)- Lots of Appellate Practice Issues

Abbott v. Burke, 206 N.J. 332 (2011).  The merits of this latest decision on the funding necessary to satisfy the mandate of article VIII, section 4, paragraph 1 of the New Jersey Constitution that the State provide a “thorough and efficient system of free public schools” will be fodder for much discussion.  Justice LaVecchia, writing for herself, Justice Albin and Judge Stern, required additional funding for 31 so-called Abbott districts.  Justice Albin, while joining in that decision, stated that he would have gone further and required that additional funding go to 205 districts.  The two-Justice minority, Justices Rivera-Soto and Hoens, each joining in the other’s dissenting opinion, would not have required additional funding and would have left the matter to the political branches.  Chief Justice Rabner and Justice Long did not participate.  No additional judges were called up to take their places.

Apart from the merits, though, the various opinions contain much to discuss in the realm of appellate law and practice.  First, there is the issue of the standard of review of a special master.  The Court had appointed Judge Peter Doyne as a special master to conduct hearings, in order to create a record and make factual findings.  A copy of Judge Doyne’s 89-page report was attached to Judge LaVecchia’s opinion.  In his concurring opinion, Justice Albin buttressed Justice LaVecchia’s endorsement of Judge Doyne’s findings by listing evidence supporting those findings.  Justice Albin noted that “[t]his Court is required to defer to the factual determinations of the Special Master so long as they are ‘supported by substantial credible evidence in the record,'” quoting Abbott v. Burke (Abbott XX), 199 N.J. 140, 146 n.2 (2009), and citing State v. Chun, 194 N.J. 54, 93 (2008).

In her dissent, Justice Hoens conceded that Justice Albin’s recitation was “not inaccurate,” but that other evidence cut against Judge Doyne’s views.  Justice Albin observed in response that the dissent “does not faithfully adhere to [the] deferential standard of review.  We are not permitted to cherry pick bits and pieces of testimony that, when viewed in isolation, might suggest a different or preferred outcome.”

Justice Albin has the better of the argument in this regard.  It is not the function of the Supreme Court to reweigh evidence, even if some of Justice Hoens’ observations about the way certain school districts spent their money (for example, funding athletics at the expense of academics) do have some merit.

Second, there is the issue of how many votes are required for the Supreme Court to grant a motion.  That was the focus of Justice Rivera-Soto’s dissent.  The issue had potential importance because this case came to the Court on a motion to enforce litigant’s rights pursuant to Rule 1:10-3, not as a plenary appeal.

Justice Rivera-Soto conceded that the Court Rules do not specify the number of Justices required to grant a motion.  As he noted, Rule 2:8-1(c) specifies the number of judges of that court who must vote to grant various types of motions.  Given the silence of the Rules, Justice Rivera-Soto said, “the requirements for granting a motion before this Court have been the subject of extensive internal discussion and have evolved as a matter of practice.  Based on those discussions and evolution, the rule of practice in fact and consistently applied in this Court has been that, to be granted, a motion requires the affirmative vote of four, regardless of the number of Justices voting,” Justice Rivera-Soto said.

Appellate practitioners know that, for example, four votes are required to grant a motion for leave to appeal to the Supreme Court, while, under Rule 2:12-10, only three votes are needed to grant a petition for certification.  But Justice Rivera-Soto seemed to undermine his own argument by citing a very small handful of instances in which the Court has granted motions by a 3-2 vote.  He observed, however, that none of those votes involved a “dispositive” motion.  Instead, they were all “motions seeking only interim procedural relief” (emphasis in original).  Given the Court’s historical practices, Justice Rivera-Soto found it “simply incomprehensible” that the Court would grant by a 3-2 vote substantive relief that might require the State to spend over $1 billion of taxpayer money.

Justice LaVecchia confronted this issue squarely, accusing the dissenters of “attempt[ing] to place at issue the time-honored doctrine that majority rules.”  She noted that all of the 3-2 motion votes cited by Justice Rivera-Soto were grants of those motions, so that “historical practice” showed that, with a five-member Court, three votes suffice to grant a motion.  Justice LaVecchia also cited a number of New Jersey and federal cases that recognize a common law rule that when a quorum is present, a majority of those present may take action.  Rule 2:13-2(a) sets at five the quorum for the Supreme Court.  Nothing in the Court Rules undercuts the common law standard that three out of five members can grant the motion for relief in aid of litigant’s rights, though (as Justice LaVecchia noted) the Rules do alter the vote needed for certain motions or other actions.

Though the caselaw cited by Justice LaVecchia was perhaps sufficient by itself, given the absence of any caselaw support for Justice Rivera-Soto’s position, Justice LaVecchia clinched the argument with a final point.  Justice Rivera-Soto’s view “would yield the illogical and indefensible result that this Court, acting with a quorum of its membership, will allow three votes to decide a case in a party’s favor, yet require four votes to ensure continuing relief to the party whose rights had already been vindicated.”  Justice Rivera-Soto had no answer.

Both Justice LaVecchia and Justice Albin scored an additional debating point on this issue.  They each observed that, only two weeks earlier, Justices Rivera-Soto and Hoens, along with a temporarily assigned judge of the Appellate Division, formed the three-vote majority in the 3-2 decision in He v. Miller, ___ N.J. ___ (2011).  That point did not meet Justice Rivera-Soto’s contention that motion decisions are to be treated differently than merits decisions.  But it did make the dissenters appear in a questionable light.

Parenthetically, the references to the fact that in He v. Miller the deciding vote was cast by an Appellate Division judge sitting by designation on the Supreme Court brings up once again Justice Rivera-Soto’s history of positions on the participation of Judge Stern, whom the Chief Justice appointed to fill the seat of Justice Wallace.  Originally, Justice Rivera-Soto refused to vote in any case on which Judge Stern sat.  Later, Justice Rivera-Soto altered his position to say that he would vote unless Judge Stern’s vote affected the outcome of the case.  Evidently, Justice Rivera-Soto has abandoned that position too, since Judge Stern was the deciding vote in this case.

Had Justice Rivera-Soto not voted in the case, there would not have been a quorum.  Presumably, another Appellate Division judge would have been summoned to create a quorum.  It is certainly preferable that a sitting Justice vote, rather than give way to a judge who has not gone through the constitutional appointment process.  That is especially so since the outcome would not have changed.  Thus, Justice Rivera-Soto did the right thing by voting even though Judge Stern was the deciding vote, despite Justice Rivera-Soto’s previous statements that he would not vote in such a case.

Third, Justice Rivera-Soto criticized the majority for “abandon[ing] the salutary practice of unanimity almost universally followed by courts of last resort: they often have spoken through unanimous rulings in contentious cases in order to avoid likely criticism and, more to the point, to encourage compliance.”  He cited Brown v. Board of Education, 347 U.S. 483 (1954), United States v. Nixon, 418 U.S. 683 (1974) (the “Nixon tapes” case), and prior rulings in Abbott v. Burke as examples.

Justice Rivera-Soto is certainly correct that unanimity is desirable in “blockbuster” cases such as this, especially in order to encourage compliance.  Indeed, Governor Christie at one time was unwilling to state that he would obey the Court’s order in this case, whatever it might be, so that Justice Rivera-Soto’s concern about compliance was not merely an abstract one.

Accepting, however, the importance of unanimity in a case such as this, what is to be done when there is disagreement?  Was Justice Rivera-Soto really suggesting that relief cannot be granted in the absence of unanimity?  That would give even one Justice a veto, a result that would go beyond even Justice LaVecchia’s criticism that the dissenters sought to undermine the principle of “majority rules.”

Yet, it seems that this is precisely what Justice Rivera-Soto was saying.  He completed his discussion of the preference for unanimity by saying: “That today’s decision will be the source of great controversy is an understatement, which additionally militates against the extreme action today taken.”  If courts, especially the highest Court, can issue only decisions that garner the votes of all members of that Court and are “vanilla” enough to command general societal acceptance, the historic function of the Court as, among other things, the protector of the constitutional rights of the minority or the unfortunate may no longer be operative.

This leads to the fourth aspect of today’s ruling.  The majority recognized that, ever since Marbury v. Madison, 5 U.S. 137 (1803), the highest Court is the arbiter of the Constitution, even where that means that the Court must sit in judgment of other branches of government.  Justice LaVecchia observed that the fact that New Jersey Constitution gives the Legislature the power to appropriate monies does not mean that the Court cannot protect the mandate of the Constitution’s Education Clause.  She cited a case going back to 1976 that so held.  Justice Albin, in his concurrence, put this idea, in part, this way:

The rights guaranteed in the New Jersey Constitution do not rise and fall with popular opinion; they do not flourish in the best of times and perish in the worst of times.  The framers of our constitutional charters made the courts the guarantors of those rights, even when it may not be fashionable to do so.  We cannot escape our constitutional responsibilities.  Judicial review requires the courts, from time to time, to sit in judgment of the acts of another branch of government.  A core judicial function is to construe the meaning of the Constitution and to make meaningful the rights given our citizens by the Constitution.  That is a key piece in the structural framework of a constitutional democracy.

Justices Rivera-Soto and Hoens saw this issue very differently.  The economic difficulty in which New Jersey finds itself called, in their view, for deference to the political branches.  Justice Hoens stated that the Constitution ” is not a suicide pact.”  This philosophical issue, as old as the Republic, will perhaps always be with us.

In fact, a very similar debate played out in yesterday’s 5-4 decision of the United States Supreme Court in Brown v. Plata. ___ U.S. ___ (2011).  There, the majority held that prison overcrowding in California had reached an unconstitutional level.  The majority directed that California relieve the unlawful conditions even if it meant releasing thousands of prisoners, though there were ways of mitigating the problem without opening the jails.  The dissenters contended that the job of operating prisons and allocating resources to do that belongs not with courts but with state prison administrators.  The two cases are not exact parallels, but both involve the highest court telling the political branches, after many years of litigation, that the Constitution commands them to take certain actions, despite a fiscal crisis.

Finally, and on a more mundane note, Justice Rivera-Soto observed that, by his count, the decision referred to by the majority as Abbott XX should in fact be Abbott XXI.  In a footnote, Justice Rivera-Soto listed twenty prior Abbott v. Burke decisions by the Court, and stated that Abbott XX “in fact is the twenty-first time this Court has issued a reported decision in this now more than a quarter-century-old litigation.”  As a result, he concluded that today’s decision “should be designated as Abbott XXII.”