January 28, 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:
Please accept this Letter Brief on behalf of the Plaintiffs
addressing the limited issue of the quantum of the burden of
proof that should govern the remand hearing.
TABLE OF CONTENTS
PROCEDURAL HISTORY AND STATEMENT OF FACTS...................... 1
ARGUMENT....................................................... 2
I.
THE QUANTUM OF PROOF ON REMAND IS CLEAR AND
CONVINCING ................................................................................................................ 2
II. THE QUANTUM OF PROOF MUST, AT A MINIMUM, BE GREATER
THAN
THE PREPONDERANCE OF EVIDENCE .................................................. 5
III. THE LAW OF THE CASE REQUIRES A QUANTUM OF PROOF
GREATER THAN A MERE PREPONDERANCE OF EVIDENCE ............................ 6
CONCLUSION.................................................... 10
PROCEDURAL HISTORY AND STATEMENT OF FACTS
Pursuant to the Supreme Court's Remand Order, this Court is
directed to develop a record, and make findings of fact and
conclusions of law, on a discrete issue: "whether school funding
through
SFRA,
at
current
levels,
can
provide
for
the
constitutionally mandated thorough and efficient education for
New
Jersey
school
children."
Remand
Order,
at
5,
¶2.
In
addition, the Court has placed the burden of proof on remand
upon the State. Remand Order, ¶4. This Court has directed the
parties to address the quantum of proof by which the State must
satisfy its burden.
For the reasons stated below, the appropriate quantum of
proof,
in
view
of
the
fundamental
stake, is clear and convincing.
constitutional
rights
at
In any event, the quantum of
proof must be greater than a mere preponderance of evidence.
ARGUMENT
POINT I
THE QUANTUM OF PROOF ON REMAND IS CLEAR AND CONVINCING
In its Remand Order, the Supreme Court directed the State
to "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.” Remand
Order, ¶4.
As explained below, clear and convincing is the
quantum of that proof the State must meet on the specific issue
to be addressed on remand.
While the preponderance of the evidence applies in general
civil actions, the clear and convincing standard is nonetheless
2
compelled
in
civil
litigation
in
which
fundamental
constitutional rights are at issue. See N.J.R.E. 101(b)(1).
the
Supreme
implicates
fundamental
License
Court
has
made
clear,
the
deprivation
of
or
significant
to
Revocation,
90
N.J.
an
where
interest
personal
550,
a
civil
proceeding
is
"clearly
welfare,"
In
re
(1982),
the
563
that
As
Polk
minimum
preponderance 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. at 568); see also 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, 99 S. Ct.
1804, 1808, 60 L. Ed. 2d 323 (1979)(mandating the clear and
convincing standard “when the individual interests at stake are
both ‘particularly important’ and ‘more substantial than mere
loss of money’”)).1
There is no question that, under well-
settled New Jersey jurisprudence, our courts are required to
utilize clear and convincing as the quantum of proof in civil
litigation
involving
the
adjudication
of
fundamental
constitutional rights.
1
The “clear and convincing” standard requires that the
evidence be clear, direct, weighty and convincing so 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
This
Court's
remand
proceeding
determinations
(2009)(Abbott
XX)
flows
in
directly
Abbott
concerning
the
v.
from
Burke,
the
196
sufficiency
of
Supreme
N.J.
the
140
State's
school funding formula -- the School Funding Reform Act (SFRA) -
to
provide
a
thorough
and
efficient
education.
The
fundamental right of all New Jersey school children under the
Education Clause, N.J. Const., art. VIII, § 4, and the State's
"continuing
obligation"
to
ensure
those
rights
through
full
funding of the SFRA, is solely and squarely at issue on remand.
Remand Order, at 4.
Thus, the discrete issue in this proceeding
goes far beyond, and is far more substantial, than general civil
actions
involving
pecuniary
loss
of
money
or
other
similar
claims. See Levine v. State Dept. of Institutions and Agencies,
84 N.J. 234, 258 (1980); Robinson v. Cahill, 69 N.J. 133, 147
(1975) (“Robinson IV”).
Indeed,
throughout
the
history
of
this
litigation,
the
Court has repeatedly underscored the fundamental dimension of
the
right
Plaintiffs
to
a
and
thorough
all
and
other
efficient
New
Jersey
education
school
to
children
which
are
entitled. See, e.g., Abbott XX, 199 N.J. at 143(describing the
provision of public education as a "fundamental responsibility"
of the State.)
standard
by
Clear and convincing is therefore the proper
which
to
determine
whether
the
State
has
demonstrated on remand that the present level of school funding
4
distributed through the SFRA formula satisfies the “fundamental
responsibility”
of
the
State
to
provide
for
a
thorough
and
efficient education for all New Jersey school children.
POINT II
THE QUANTUM OF PROOF MUST, AT A MINIMUM, BE GREATER THAN
THE PREPONDERANCE OF EVIDENCE
As discussed above, more than a preponderance of evidence
is
required
in
constitutional
civil
rights.
actions
While
the
involving
fundamental
overwhelming
weight
of
judicial authority compels the use of the clear and convincing
standard
when,
as
the
present
case,
fundamental
rights
are
implicated, the Court, at a minimum, must utilize a standard
greater than the preponderance of evidence to determine whether
the
State
In
employed
has
addition
met
to
clear
closely
constitutional
its
and
related
rights,
including
burden
on
convincing,
courts
standards
in
“convincing,”
remand.
have
also
adjudicating
"convincingly,"
and “abiding conviction.” 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
5
when
governmental
investigation implicates First Amendment rights, that government
“‘convincingly’
demonstrate
that
the
investigation
is
‘substantially related’ to the information sought”); Davidson v.
Fornicola, 38 N.J. Super. 365, 372 (App. Div. 1956)(describing
the various formulations of the higher standard of proof used by
courts over time, and their distinction from the preponderance
of evidence standard).
related,
or
standard,
than
the
even
the
While these formulations are closely
synonymous
convincing
preponderance
with,
standard
the
“clear
"requires
a
standard,...higher
and
convincing
burden
than
a
greater
simple
probability but lower than a high probability." Abbott v. Burke,
199
N.J.
140,
238
(2009)(Remand
Opinion).
Therefore,
the
appropriate quantum of proof in this case must exceed a mere
preponderance of evidence.
POINT III
THE LAW OF THE CASE REQUIRES A QUANTUM OF PROOF GREATER
THAN A MERE PREPONDERANCE OF EVIDENCE
The history of the Abbott litigation demonstrates that the
State’s
burden
of
proof
to
justify
its
actions
under
the
Thorough and Efficient Education Clause has always been greater
than a preponderance of evidence.
Specifically, in prior Abbott
decisions, the Supreme Court directed the use of a "clear and
convincing" evidentiary standard, or its functional equivalent,
to adjudicate State compliance with its constitutional remedial
6
decrees issued to vindicate Plaintiffs right to a thorough and
efficient
education.
Significantly,
the
Court
has
never
suggested that as assessment of the State’s fulfillment of its
constitutional obligation to provide a thorough and efficient
education
should
be
considered
under
the
preponderance
of
evidence standard.
In Abbott v. Burke, 119 N.J. 287 (1990), (Abbott II), the
Court specifically stated that it “would not strip all notions
of equal and adequate funding from the constitutional obligation
unless we were convinced that the State was clearly right.” 119
N.J. at 377(emphasis added).
In Abbott v. Burke, 149 N.J. 145
(1997)(Abbott IV), the Court expressly held that, with regard to
replacing the parity remedy for regular education, the State
must proffer “concrete” evidence to “convincingly demonstrate”
that
any
new,
funding
mechanism
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).
In Abbott XX, the
Court not only based its holding on a 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 educational programs
consistent
with
state
standards,"
id.
at
147,
but
also
reaffirmed its "insistence that if the State could convincingly
demonstrate that a substantive thorough and efficient education
7
can
be
achieved,
Court-imposed
remedies
would
no
longer
be
from
the
Abbott
XX
needed." Abbott XX, 199 N.J. at 163-64.
Indeed,
the
unmistakable
conclusion
decision is that a quantum of proof standard in this remand
proceeding
greater
than
the
compelled.
The Court’s decision in Abbott XX that the State had
“convincingly demonstrated”
preponderance
of
evidence
is
the constitutionality of SFRA was
“predicated on the express assumption that SFRA would be fully
funded” and that the State’s responsibility under the SFRA was a
“continuing obligation.” Remand Order at 4.
Now that the State
has significantly underfunded the SFRA formula, and the Remand
Order properly places the burden on the State to demonstrate the
continuing
constitutionality
of
the
SFRA
in
light
of
this
substantial reduction in funding, the quantum of proof should be
no less than what was required of the State in the first remand
proceeding.
To rule otherwise would reward the State with a
lesser
quantum of proof to justify its failure to fulfill the express
conditions
namely
underpinning
that
the
demonstrated.”
fully
fund
SFRA’s
Put
the
responsibilities
the
Court’s
constitutionality
differently,
SFRA
in
imposed
decision
clear
by
given
the
was
XX,
Abbott
the
of
XX,
“convincingly
State’s
disregard
Abbott
in
failure
the
quantum
to
continuing
of
proof
should require, at the very least, a convincing demonstration by
8
the
State
that
the
constitutionally
required
thorough
and
efficient education can be provided to all New Jersey school
children at the significantly lower funding level.
Thus, the "law of the case"
in this litigation
clearly
requires the State to meet an evidentiary standard higher than a
mere preponderance.
a
court
decides
Under the “law of the case” doctrine, “when
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); United Artists Theatre Circuit,
Inc.
v.
Township
Cir.2003)
when
of
Warrington,
316
F.3d
392,
398-99
(3d
(holding that the law of the case doctrine applies
prior
decisions
"in
an
ongoing
case
either
expressly
resolved an issue or necessarily resolved it by implication”);
In
re
City
of
Philadelphia
Litig.,
158
F.3d
711,
718
(3d
Cir.1998) (same).
Throughout the numerous remedial proceedings in this case,
the
Supreme
Court
has
consistently
preponderance of evidence
eschewed
as the standard to
the
use
be employed
of
in
assessing whether the State has met its burden of demonstrating
that its funding actions or decisions ensured the provision of a
thorough
children.
and
efficient
education
for
all
New
Jersey
school
There is no basis in the Remand Order, nor is there
any other reason in this remand proceeding, to depart from that
9
history
and
lessen
the
burden
upon
the
State
to
a
mere
preponderance of evidence.
Consequently, while the clear and convincing standard is
the most appropriate in light of the constitutional rights at
stake, at a minimum, the State must convincingly demonstrate
that current levels of funding under the SFRA can provide New
Jersey school children a thorough and efficient education.
CONCLUSION
In sum, clear and convincing evidence is most appropriate
quantum of evidence standard when, as here, the issue is the
State's obligation regarding the fundamental educational rights
of New Jersey school children.
In any event, given the rights
at stake, the prior history of these proceedings, and the nature
of the remand proceedings, a quantum of proof exceeding the
preponderance of the evidence standard is compelled.
Respectfully submitted,
EDUCATION LAW CENTER
David G. Sciarra, Esq.
Attorney for Plaintiffs
Encls.
cc: Jon C. Martin, DAG
Lawrence S. Lustberg, Esq.
John D. Rue, Esq.
Counsel for Amici Curiae
10