Theodore Botter, an Appellate Division judge who was best known for a landmark decision that he issued as a trial judge, died on June 22, according to an obituary published yesterday. Having done his undergraduate work at Ohio State and Brown University, he got his law degree from the Columbia University School of Law in 1949.
After an initial period of time in private practice, Judge Botter joined the Office of the New Jersey Attorney General, where he thereafter rose to the position of First Assistant Attorney General. He was appointed to the Superior Court bench in 1964 and promoted to the Appellate Division in 1974. Before retiring from the Appellate Division in 1984, to return to private practice, Judge Botter became a Presiding Judge of the Appellate Division in 1980.
A LEXIS search reveals several hundred published opinions by Judge Botter. (There were many more published per curiam opinions then than is the case today, and some of those per curiam decisions doubtless were by Judge Botter.). Some of his Appellate Division rulings cases ultimately reached the Supreme Court. One of his most cited Appellate Division opinions was Ventura v. Ford Motor Co., 180 N.J. Super. 45 (App. Div. 1981), a warranty case.
But the decision for which Judge Botter became instantly known, and for which he is still best known, was Robinson v. Cahill, 118 N.J. Super. 223 (Law Div. 1972). In that lengthy opinion, Judge Botter held that the property tax-based system of funding public education in New Jersey violated the “the requirements for equality contained in the State and Federal Constitutions.” Those included the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, the implied equal protection component of Article I, paragraph 1 of the New Jersey Constitution, and Article VIII, section 4, paragraph 1 of the New Jersey Constitution, which guaranteed “a thorough and efficient system of public schools for the instruction of all the children in the State between the ages of five and eighteen years.”
Though that ruling, commonly known as the “Botter decision,” stated that “[n]othing herein shall be construed as requiring the Legislature to adopt a specific system of financing or taxation,” the case (after repeated Robinson v. Cahill rulings by the Supreme Court) ultimately led to the institution of a state income tax under Governor Byrne.
The “Botter decision” can also be said to have begat the subsequent series of more than 20 cases known as Abbott v. Burke, which also addressed school funding. Those cases have had a life of over 25 years, from the mid-1980’s until the most recent Supreme Court ruling in that series earlier this year, all of which Judge Botter lived to see. His big trial level decision thus had more impact than most appellate rulings.