January 27, 2011
The Honorable Peter E. Doyne, A.J.S.C.
Superior Court of New Jersey
Bergen County Justice Center
Suite 425
Hackensack, NJ 07601-7699
Re:
Abbott v. Burke
Docket No. M-1293
Dear Judge Doyne:
Education
Law
Center,
assisted
by
pro
bono
co-counsel
Gibbons P.C. and White & Case, represent the Abbott Plaintiffs
in the above-captioned matter, currently on remand before Your
Honor.
Please
accept
this
Letter
Brief
on
behalf
of
the
Plaintiffs addressing the limited issue of the quantum of the
burden of proof governing the remand hearing.
TABLE OF CONTENTS
Procedural History and Statement of Facts
Argument
I.
II.
III.
Conclusion
PROCEDURAL HISTORY AND STATEMENT OF FACTS
Plaintiffs will provide a detailed Procedural History and
Statement of Facts in their pre-trial brief.
Pursuant to the
January 13, 2011 Order of the Supreme Court of New Jersey, this
matter is before this Court to create a record and to make
proposed findings of fact and conclusions of law by conducting a
hearing
that
"shall
consider
whether
school
funding
through
SFRA, at current levels, can provide for the constitutionally
mandated thorough and efficient education for New Jersey school
children."
As directed by the Supreme Court, the State bears
the burden of proof on remand, and this Court has asked the
parties to address the quantum of proof by which the State must
satisfy its burden.
I.
THE QUANTUM OF THE STATE’S BURDEN OF PROOF ON REMAND
IS CLEAR AND CONVINCING EVIDENCE
As the Supreme Court made clear in Abbott XXI, the State
“must bear the burden of demonstrating that the present level of
school funding distributed through the SFRA formula can provide
for
a
thorough
and
efficient
education
as
measured
by
the
comprehensive core curriculum standards in districts with high,
medium and low concentrations of disadvantaged pupils. Abbott
XXI, 2011 ????, at *?.
As explained below, the “clear and
2
convincing” standard is the appropriate quantum of proof that
the State must meet on remand.1
The “clear and convincing” standard is compelled in matters
impacting fundamental constitutional entitlements since, as the
Supreme Court has held, “proof by a lower standard will not
serve
to
generate
confidence
in
the
ultimate
factual
determination.” Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 170
(2006)(quoting In re Polk License Revocation, 90 N.J. 550, 568
(1982)); Santosky v. Kramer, 455 U.S. 745, 756, 102 S. Ct. 1388,
1396, 71 L. Ed. 2d 599 (1982), (quoting Addington v. Texas, 441
U.S.
418,
424,
(1979)(mandating
99
S.
Ct.
the
clear
1804,
and
1808,
convincing
60
L.
Ed.
standard
2d
323
“when
the
individual interests at stake are both ‘particularly important’
and ‘more substantial than mere loss of money’”)).
no
case
known
to
Plaintiffs
has
a
court
Indeed, in
accepted
the
preponderance of evidence as the quantum of proof required in a
case involving fundamental constitutional rights.
In
this
litigation,
Plaintiffs’
entitlement
to
a
constitutional education, N.J. Const., art. VIII, § 4, is at
stake, which is a fundamental right far more substantial than
1
The “clear and convincing” standard requires that the
evidence be so clear, direct and weighty and convincing as to
enable the fact finder to come to a clear conviction, without
hesitancy, of the precise facts in issue. In re Subryan, 187
N.J. 139, 144 (2006); see also Estate of Ostlund v. Ostlund, 391
N.J.Super. 390, 400 (App. Div. 2007).
3
the loss of money.
Levine v. State Dept. of Institutions and
Agencies, 84 N.J. 234, 258 (1980); Robinson v. Cahill, 69 N.J.
133,
147
(1975)
underscored
(“Robinson
the
IV”).
“particular
In
Abbott
import”
of
II,
a
the
Court
constitutional
education to Plaintiffs’ future life prospects:
While education is largely absent from
[Abbott schoolchildren’s] lives, we get some
idea of what is present from the crime rate,
disease rate, drug addiction rate, teenage
pregnancy rate, and the unemployment rate.
Without an effective education [the Abbott
schoolchildren]
are
likely
to
remain
enveloped in this environment. Their overall
needs are not limited to education, but that
need is overwhelming.
[Id. at 391-92.]
As
the
fundamental,
right
to
and
the
a
thorough
need
for
and
a
efficient
education
constitutional
is
education
“overwhelming,” the clear and convincing standard is thus the
appropriate measure by which to determine whether the State has
demonstrated
that
the
present
level
of
school
funding
distributed through the SFRA formula can provide for a thorough
and efficient education.
II.
AT A MINIMUM, THE EVIDENTIARY STANDARD MUST BE
CONVINCING, OR GREATER THAN A PREPONDERANCE OF THE
EVIDENCE
In
addition
“convincing,”
to
"clear
“abiding
and
convincing,"
conviction”
and
the
terms
“convincingly
demonstrate” have been employed by New Jersey state courts to
4
reflect
the
heavy
burden
that
has
been
imposed
in
matters
adjudicating constitutional rights. Wright v. Village of South
Orange,
79
N.J.
Super.
96,
105
(App.
Div.
1963)(relying
on
“abiding conviction” standard when constitutional rights are at
issue); Branzburg v. Hayes, 408 U.S. 665, 739-40, 92 S. Ct.
2646,
2679,
33
L.
Ed.
2d
626
(1972)
(Stewart,
J.,
dissenting)(citing U.S. Supreme Court’s consistent holding when
governmental
that
investigation
government
investigation
sought”).
implicates
“‘convincingly’
is
‘substantially
First
Amendment
demonstrate
related’
to
rights,
that
the
the
information
See generally Davidson v. Fornicola, 38 N.J. Super.
365, 372 (App. Div. 1956) (describing the various formulations
of this higher standard of proof used by courts over time, and
their distinction from the preponderance of evidence standard).
While Plaintiffs consider those formulations to be synonymous
with
“clear
and
convincing
evidence,”
they
accept,
in
the
alternative, this Court's view that "[a] 'convincing' standard
requires
higher
a
burden
than
probability."
a
greater
simple
than
the
probability
preponderance
but
lower
standard,…
than
a
high
Abbott v. Burke, 199 N.J. 140, 238 (2009)(quoting
from the remand opinion of the Hon. Peter E. Doyne, A.J.S.C.).
III. THE STATE MUST PROVE ITS CASE WITH CONVINCING EVIDENCE
UNDER THE LAW OF THE CASE DOCTRINE
5
Even absent this backdrop of State and federal decisions,
the
Supreme
Court’s
pronouncements
in
prior
Abbott
decisions
regarding the burden of proof on the State have established a
"clear and convincing" evidentiary standard, or its equivalent,
as
"the
law
proceeding.
of
the
case"
that
should
govern
this
remand
Under the “law of the case” doctrine, “when a court
decides upon a rule of law, that decision should continue to
govern the same issues in subsequent stages in the same case.”
Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75
L.Ed.2d 318 (1983). “Courts apply the law of the case doctrine
when their prior decisions in an ongoing case either expressly
resolved an issue or necessarily resolved it by implication.”
United Artists Theatre Circuit, Inc. v. Township of Warrington,
316 F.3d 392, 398-99 (3d Cir.2003) (citation omitted) (emphasis
added); see also In re City of Philadelphia Litig., 158 F.3d
711, 718 (3d Cir.1998) (same).
In Abbott II, the Court specifically stated that it “would
not strip all notions of equal and adequate funding from the
constitutional
that
the
State was clearly right.” 119 N.J. at 377 (emphasis added).
In
addition,
the
obligation
Court
unless
expressly
we
held
were
in
convinced
Abbott
IV
that,
with
regard to replacing the parity amount for regular education with
another base amount, the State must proffer “concrete” evidence
to
“convincingly
demonstrate”
that
6
any
new,
reduced
amount
assures Plaintiffs adequate funding to achieve state standards.
Abbott IV, 149 N.J. at 196; see also Abbott XIX, 196 N.J. 544,
562(same).
on
a
In Abbott XX, the Court not only based its holding
record
that
"convincingly
demonstrates
that
SFRA
is
designed to provide school districts in this state, including
the Abbott school districts, with adequate resources to provide
the
necessary
standards,
educational
199
N.J.
"explicit…insistence
programs
140,
that
147,
if
the
consistent
but
also
State
with
state
reaffirmed
could
its
convincingly
demonstrate that a substantive thorough and efficient education
can
be
achieved,
Court-imposed
remedies
would
no
longer
be
needed, 199 N.J. at 163-64 [quotations omitted]."
Thus, throughout the proceedings in this case, the Court
has demonstrated its intent that a clear and convincing standard
-- or at least a convincing standard -- be employed; without
clear direction otherwise, this Court should not impose a lesser
quantum of proof where the State has been given the burden of
proving that "current underfunded levels" of school funding can
nonetheless
afford
a
constitutionally
mandated
thorough
and
efficient education to New Jersey's school children.
CONCLUSION
In sum, the clear and convincing standard, or at a minimum,
a standard that exceeds the preponderance of the evidence, is
compelled where, as here, the issue at stake is the State's
7
obligations regarding the fundamental educational rights of the
Abbott school children.
Respectfully submitted,
David G. Sciarra, Esq.
Attorney for Plaintiffs
Encls.
cc:
Mark Neary, Clerk, NJ Supreme Court
Jon Martin, DAG
Lawrence S. Lustberg, Esq.
John Rue, Esq.
Counsel for Amici Curiae
8