dissenting.
Speaking for the Court in Abbott v. Burke, 170 N.J. 537, 790 A.2d 842 (2002), Chief Justice Poritz observed that “[t]imely disposition of Abbott cases is critical for children living in the Abbott districts.” Id. at 543, 790 A.2d at 846. She added that “[d]ecision-making in respect of programs for the next school year must be completed in time for implementation in the next school year if the process is to be meaningful.” Ibid. She concluded by characterizing the Department of Education’s record on “timely disposition” of Abbott budgeting decisions as “dismal.” Ibid. The letters issued by the Department of Education (“DOE”) on February 5, 2004, which are at issue here, are not merely a continuation of that dismal record; they reveal continued, if not willful, resistance to the Court’s efforts to insure for every child in the Abbott districts the thorough and efficient education guaranteed by our State Constitution.
The overarching purpose of the Supreme Court’s order of July 23, 2003, Abbott v. Burke, 177 N.J. 596, 832 A.2d 906 (2003) (“Abbott XT”), was to obtain fair and timely administrative dispositions that would permit the districts to plan and execute their 2003-2004 budgets rationally. Since I believe that the majority’s opinion is inconsistent with that purpose and misinterprets the Supreme Court’s order to the prejudice of the school districts and the children they serve, I respectfully dissent.
On January 26, 2004, we filed an opinion in this case directing the DOE “to redetermine the Abbott districts’ preliminary maintenance budget figures in conformity with paragraph four of the Supreme Court’s July 23rd order and to issue revised figures to the Abbott districts within ten days of the filing of this opinion.” Asbury Park Board of Education v. New Jersey Department of Education, 369 N.J.Super. 481, 493, 849 A.2d 1074, 1081 (App.Div.2004).
On February 5, 2004, the DOE sent two letters to each district. Though the figures differ for each district, the essence of the letters was the same for all districts. The DOE’s position was that the first letter satisfied our ruling, but that the figures in that *512letter were superseded by the figures in the second letter, which contained calculations based on the district’s 2002-2003 spending as certified pursuant to the Comprehensive Annual Financial Report (“CAFR”) for that fiscal year, prepared in accordance with N.J.S.A. 18A:23-1 to -11, which requires the districts to complete their audits “not later than 4 months after the end of the school fiscal year.” N.J.S.A. 18A:23-1.
The DOE’s first letter relied on an interpretation of paragraph four of the Court’s July 23rd order which I reject. The key phrase in paragraph four is “estimate of the supplemental funding that will be needed to support that currently approved budget.” The DOE interpreted that phrase to refer to State discretionary Abbott aid. It then determined the number for that aid by subtracting the 2003-2004 revenues of the district from the district’s 2002-2003 approved budget. However, it did so without adding money to the 2002-2003 budget for non-discretionary expenditures. It adopted that course because, as its letter said, “The only adjustment to the 2002-2003 approved budget referenced in paragraph four is a reduction for programs found to be ineffective or inefficient, thus no adjustments for non-discretionary costs are included.”
The DOE’s new tactic is inconsistent with its original interpretation of the Supreme Court’s order and contrary to a sensible reading of that order.
In the August notices, the DOE included money for non-discretionary increases, and in its brief on the initial appeal, the DOE argued that it “permitted districts to appeal any portion of the DOE maintenance budget decision and that districts did so.” It added in a footnote to that statement that “[t]his included the ability to appeal the items identified by the DOE for non-discretionary increases and the percentage of the increase.”
The first of the two February 5th DOE letters purported to be in the form required by paragraph four, but if that were so the districts would have had no knowledge in August 2003 of the increases for non-discretionary items. Without that knowledge, *513they could not have prepared their budgets, and they obviously would have been unable to litigate the issues arising from the DOE’s allowances for non-discretionary items in the OAL in the time frame ordered by the Supreme Court.
If the DOE’s contentions — that it was entitled to recalculate aid based on actual 2002-2003 expenditures as established by the CAFR, and that it also would have been proper to withhold the figures for non-discretionary expenditures until the 2002-2003 CAFR — are correct, then the districts would be permitted to bring actions now in the OAL challenging the calculations for non-discretionary spending. But that course would be inconsistent with the DOE’s initial approach of allowing for those expenditures in the August 2003 letters. It would also be inconsistent with the Supreme Court’s order, which clearly contemplated only one appeal by each district in the OAL following service of the notices required by paragraph four of its order.
The DOE’s approach in the first letter of subtracting 2003-2004 revenues from the 2002-2003 approved budget makes no sense. The difference cannot be rationally categorized as an “Estimate of Supplemental Funding” because the Supreme Court clearly ruled in paragraph two of its July 23rd order that the supplemental funding was to be determined, in part, by adding to the 2002-2003 budget the money necessary for non-discretionary expenditures.
Paragraph two of the Court’s July 23rd order provides no support for what the DOE has done here. When the Court referred to implementation of “current approved programs, services, and positions” for the maintenance budgets it was referring to items “approved” in the 2002-2003 budget. Abbott XI, 177 N.J. at 598, 832 A.2d at 907 (emphasis added). These are matters that are current, not in the sense that they were in existence at the moment the order was entered, but current in the sense that they were provided for in the 2002-2003 budget. This interpretation is buttressed by the additional statement in paragraph two of the July 23rd order that “|'m]aintenance does not include the restoration of programs, positions, or services that were reduced in 2002-*5142003, or new programs, positions, or services----” Ibid, (emphasis added). I believe that when the Court used the phrase “reduced in 2002-2003,” it was referring, not to coincidences occurring during the year, but to the budget as adopted for 2002-2003 and as approved by the DOE. Paragraph one of the Court’s order provides further support. The Court said this: “During 2003-2004, K-12 programs provided for in the 2002-2003 school year will be continued____” Ibid, (emphasis added). The phrase “provided for” refers, not to district expenditures, but to their budgets.
The August 27, 2003, notices to the districts were intended by the Supreme Court to establish for the districts what their budgets would be for the year, and these notices were to be the basis for any litigation between the DOE and the districts. The 2002-2003 CAFR and the Appropriations Act have no relationship to that process. CAFR, apart from its role of providing the DOE with a mechanism for oversight of district budgets, provides an accurate method of confirming as to each district the amount of excess surplus arising from a previous year’s budget, in this case the 2002-2003 budget. The Appropriations Act makes that excess surplus available to the DOE as follows:
In making any adjustment to the discretionary award, the commissioner shall consider all of the district’s available resources and any appropriate reallocations, including, but not limited to, a reallocation of the district's undesignated general fund balances in excess of two percent.
[L. 2003, c. 122.]
That section of the Appropriations Act also permits adjustments based on “available resources” that appear during the year and reallocations that are justified when, for whatever reason, the expenditures for a line item in the budget turn out to be less than expected. But all of these adjustments are “to the discretionary award,” not to the budget. They can be made during the year because Abbott discretionary aid is paid from time to time throughout the year.
Consequently, the DOE, acting pursuant to the authority provided by the Appropriations Act, can use reallocation and the excess surplus of a district, as identified by the CAFR process, to *515assist in the funding of the district’s current budget, which in this case is the budget for 2003-2004, thereby, and to that extent, reducing State aid without harm to the district. Nothing in the CAFR, the Appropriations Act, or indeed in the DOE regulations, justifies recalculation of the approved 2003-2004 budget expenditures based on the 2002-2003 expenditures over halfway through the school term and after the OAL appeals process established by the Supreme Court has been completed.
As noted above, the districts’ CAFR reports must be filed with the DOE no later than four months after the end of the school fiscal year. Thus, the 2002-2003 CAFR reports should have been filed before we rendered our first opinion; in which case, the DOE, if its present position is correct, could have issued the second of the February 5,2004, letters before we decided the case, thereby rendering that opinion moot on the maintenance budget issue. The DOE’s failure to follow that course then is inconsistent with its adoption of that course now. Had I supposed for a moment that the DOE would read our opinion as somehow permitting it to follow the course it has now chosen, I would not have joined that opinion.
Despite this ongoing litigation, the proper vantage point for analysis of the Supreme Court’s July 23rd order is the beginning of the 2003-2004 fiscal year. Although the Supreme Court contemplated continued litigation by the districts, its intent was to have the DOE approve the districts’ budgets by the end of August, and it intended that the separate paragraphs of its order be read in relationship to each other to obtain that goal. It did not contemplate, so far as I can tell, that the distinction it drew between a preliminary maintenance budget and a final maintenance budget would be used in the manner now selected by the DOE. Rather, it directed the DOE to accept for 2003-2004 the 2002-2003 budgets, as increased for non-discretionary items, and as reduced for such inefficiencies as it could identify.
Therefore, I would direct the DOE to recalculate the districts’ final maintenance budgets for 2003-2004 in accordance with the *516thrust of our prior opinion and the Supreme Court’s order, by adding to the 2002-2003 budget of each district the non-discretionary expenditures as originally calculated by the DOE, subject to further adjustment based on our resolution of the individual district appeals directed to inefficiency deductions and adjustments for non-diseretionary spending.