Robinson v. Cahill

Mountain and Clifford, JJ.

(dissenting). Today’s decision marks the Court’s entrance into the business of financing public education. There seems to be at least tacit agreement among us all that by reason of both constitutional law and the complexities of the subject matter, the judiciary is conspicuously unsuited for shouldering the burdens of that business, more appropriately left to the Legislature as unmistakably provided by the 1875 amendment to the 1844 Constitution, Ariicle IV, § VII, ¶ 6, carried over to the 1947 *375Constitution in Article VIII, § IV, ¶ 1. Since the most meticulous search of our Constitution fails to disclose any textual warrant for the unprecedented step taken by the majority, justification for this acknowledged judicial encroachment on the legislative preserve must be sought elsewhere. And so the majority discovers “a legislative transgression of a ‘right guaranteed to a citizen/ ” ante at 347, in turn evoking a judicial “response to a constitutional mandate,” ante at 354 presumably the “mandate” of Article VIII, § IV, ¶ 1 referred to above, directed solely to the legislative branch, since no other mandate is or possibly could be identified. By such diaphanous thread hangs the justification •— indeed, the asserted necessity — for the Court’s action.

Because we find ourselves in substantial accord with many of the majority’s views, and because we recognize the desirability of as much unanimity as may be mustered in support of so significant a decision as today’s, it is with some reluctance that we register our dissent. Eew cases receive the exhaustive treatment, both by way of opportunity afforded any interested party to present his views and by way of frequent exchange of ideas among members of the Court, as has been accorded this one. The opinions of our colleagues are entitled to and do receive our profound respect. But so firm is our conviction concerning the proper scope of the judicial function at this juncture that we feel obliged to express our disagreement with the remedy here invoked. That disagreement focuses on the majority’s conclusion that school aid funds appropriated or to be appropriated by the Legislature should be reapportioned by this Court in a manner which will allegedly attain a closer approximation of the kind of funding believed to be required to support “a thorough and efficient” education. We think the Court should rather stay its hand.

Initially it should be emphasized that in wrestling with this difficult problem it is of the utmost importance to bear in mind that as of this moment no one has defined what is *376meant by “a thorough and efficient” education. As the majority correctly points out, it is not the function of this Court to establish the components of a thorough and efficient education. It is rather its duty to “appraise [the] compliance” of an educational system presented for judicial review as to constitutional sufficiency. We note with approval, as does the majority, that the State Commissioner of Education has prepared and published rules and regulations looking to this end. 7 N. J. Reg. 132 (April 1975). We are likewise aware that in each house of the Legislature bills have been introduced bearing directly upon the same subject matter.

In our view there has clearly been delegated to the Commissioner of Education the power, as there has also been allocated to him the responsibility, to take whatever steps may be necessary to define the meaning of the constitutional term “thorough and efficient,” to lay down guidelines for the implementation of a program that will give it reality, and to see to it that the school districts of the State actually meet these requirements. Bd. of Educ. of Twp. of E. Brunswick v. Twp. Council of E. Brunswick, 48 N. J. 94 (1966); Bd. of Educ. of Elizabeth v. City Council of Elizabeth, 55 N. J. 501 (1970); Jenkins v. Twp. of Morris School Dist., 58 N. J. 483 (1971). A clear if unstated effect of our earlier opinion in this case, Robinson v. Cahill, 62 N. J. 473 (1973), was to lay upon the Commissioner an immediate obligation to formulate rules designed to make precise the nature of the constitutional mandate and to provide for its implementation.

While we think it clear that as the law now stands the Commissioner of Education has both the power and the obligation to define what is meant by “a thorough and efficient” education and to see that our public school system meets prescribed standards, we are very conscious that in exercising such functions he is acting more or less as an agent of the Legislature. The latter is at any time com*377pletely at liberty to change or revoke his powers or to supersede them by the passage of legislation immediately directed to the issue. Some of the bills that have been introduced seem to have a close textual correlation with the Commissioner’s proposed rules, suggesting that there is here a commendable cooperative effort being made by the two political branches of government.

Thus far we are in general agreement with the majority. When, however, it comes to the proposed reallocation of appropriated funds, as we have said, we take a different view. The problem rests in the concept commonly referred to as the doctrine of the separation of powers. It finds explicit expression in the New Jersey Constitution:

The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution. [Art. Ill, ¶ 1.]

The doctrine has not enjoyed a consistent development; it has been praised and it has been criticized. The uneven history of the concept may be noted but need not detain us here. The Supreme Court of the United States once said that all powers of government are divided into the executive, the legislative, and the judicial; and that it is “essential to the successful working of this system, that the persons entrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other.” Kilbourn v. Thompson, 103 U. S. 168, 191, 26 L. Ed. 377, 387 (1881). Professor Kenneth Culp Davis believes that probably no more extreme statement of the theory of separation of powers can be found in Supreme Court opinions. 1 Davis, Administrative Law Treatise, § 1.09, at 64 (1958). Some years later, although in dissent, Justice Holmes suggested a somewhat different and rather more modern view:

*378It does not seem to need argument to show that however we may disguise it by veiling words we do not and cannot carry out the distinction between legislative and executive action with mathematical precision and divide the branches into watertight compartments, were it ever so desirable to do so, which I am far from believing that it is, or that the Constitution requires. [Springer v. Government of Philippine Islands, 277 U. S. 189, 211, 48 S. Ct. 480, 485, 72 L. Ed. 845, 853 (1928).]

The most significant challenge to the doctrine of the separation of powers came with the birth and lusty growth of administrative law. The stoTy has been often told and needs no repeating. In modern times Congress and state legislatures have created regulatory agencies that have quite generally possessed legislative, judicial and executive powers. Thirty or forty years ago administrative agencies were attacked as being flagrant examples of a violation of the doctrine of the separation of powers, but the positive needs of government supported by flexible constitutional interpretation won the day. Landis, The Administrative Process 1-5 (1938); 1 Davis, supra, § 1.09; 1 Cooper, State Administrative Law 15 et seq. (1965).

Clearly today the doctrine of the separation of powers cannot be said to require a complete compartmentalization along triadic lines. More and more courts have come to recognize that where a practical necessity exists, a blending of powers will be countenanced, but only so long as checks and balances are present to guard against abuses. This was the view adopted by this Court in Mulhearn v. Federal Shipbuilding & Dry Dock Co., 2 N. J. 356, 363-65 (1949).1

*379As this Court more recently observed:

The doctrine of separation of powers must * * * be viewed not as an end in itself, but as a general principle intended to be applied so as to maintain the balance between the three branches of government, preserve their respective independence and integrity, and prevent the concentration of unoheoIced power in the hands of any one branch. [David v. Vesta Co., 45 N. J. 301, 326 (1965) (emphasis in original).]

Professor Davis is also of the view that

* * * the true principle that should guide the allocation of power within the general framework is not the principle of separation of the three kinds of power but is the principle of check.
The danger is not blended power. The danger is unchecked power. [1 Davis, supra, § 1.09, at 68.]

Two examples may help to illustrate the point we make. It would probably be generally conceded that when the Legislature bestows judicial and executive powers upon an agency of its creation, there is a departure from the doctrine of the separation of powers, at least as seen in its most simplistic and restricted sense. So too, when judges make law in the process of deciding eases, it can properly be said that they are indulging in legislation and that this is theoretically repugnant to the doctrine of the separation of powers. Each of these practices, however, is now completely accepted and has indeed become commonplace. Significantly, however, in each of these instances the power being exerted by the branch of government to which that power is not intrinsically inherent is not unchecked. In the first example given, it will be noted that the various powers bestowed upon a judicial agency are all subject to judicial review. In the second example the judicial legislation undertaken by a court in the exercise of its adjudicatory function is immediately subject to the will of the legislature. The latter has the *380last word; by appropriate legislation the rule of law laid down by the court can be at once changed or annulled.

But what of the power that we are considering here? We assume it would not be disputed that the power of appropriating public funds is commonly understood to be a legislative function. If the Court undertakes to reallocate funds the ultimate disposition of which has been fixed by the Legislature pursuant to the exercise of its acknowledged power of appropriation, how is this new-found power of the Court to be controlled? How can it be checked? We discern no way that this can be done. The power to appropriate is singularly and peculiarly the province of the Legislature. It is commonly thought of as an adjunct to the taxing power. If the courts are at liberty, for whatever reason, to reallocate appropriated funds in some particular case, why may not the courts do so in other cases as well ? Who is to stay the judicial hand and what law is to guide its exercise? There are no discernible boundaries or limits beyond which the power might not be exerted provided only that the Court were made to feel that the exigency of the moment was sufficiently serious to justify the action. It seems to us that the exercise of such a power by the courts is indeed unchecked, and that it cannot be said to fall within any relaxation of the doctrine of the separation of powers that has thus far been countenanced. See generally Gibbons, “The Interdependence of Legitimacy: An Introduction to the Meaning of Separation of Powers,” 5 Seton Hall L. Rev.' 435 (1974); Wright, “The Role of the Supreme Court In A Democratic Society — Judicial’Activism or Restraint?,” 54 Cornell L. Rev. 1 (1968).

Quite apart from these compelling doctrinal considerations which work against the majority’s remedy, we would point out that the federal decisions relied upon to support the existence (much less the exercise) of the judicial power to redistribute and de facto appropriate funds, ante at 352, are not in point. The separation of powers is an intra-govern*381mental concept, not an inter-governmental one. It refers to the allocation of power within a particular sovereignty or government, whether state or federal. Cf. Baker v. Carr, 369 U. S. 186, 210, 82 S. Ct. 691, 706, 7 L. Ed. 2d 663, 681-82 (1962). Bnt the federal cases cited in the majority opinion all concern evaluations of the deeds or practices of another governmental entity not on the same level with the federal judiciary, i. e., a state or subdivision thereof.2 In not one ease cited by the majority did affirmative conduct or idleness of a co-ordinate, co-equal branch confront the federal courts. The restraint normally imposed on the exercise of judicial power by the separation of powers doctrine is thus lacking in those instances. The sole decision mentioned by the majority involving this Court and a co-ordinate branch of government, Jackman v. Bodine, 43 N. J. 453 (1964), simply reiterates the “one-man, one-vote” principle etched into the law by the Supreme Court in Baker v. Carr, supra, and Reynolds v. Sims, 377 U. S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964). Measuring the consistency of state activity against the command of the federal Constitution does not raise the spectre of the separation of powers. Nor were what Mr. Justice Stewart has characterized as the “intractable economic, social, and even philosophical prob*382lems” of a remedy, Dandridge v. Williams, 397 U. S. 471, 487, 90 S. Ct. 1153, 1163, 25 L. Ed. 2d 491, 503 (1970), so intense in Jackman as the problems generated by this Court’s act of reallocating funds in the case at bar. And if the cited authorities represent what the majority characterizes as “emerging modern concepts as to judicial responsibility to enforce constitutional right,” ante at 352, we suggest those concepts should for now be permitted to remain in their “emerging” stage rather than receive further nourishment from imprudent and untimely judicial activism.

Moreover, as the majority opinion points out, there is a second provision.of the New Jersey Constitution which is also applicable. Article VIII, § II, ¶ 2, in pertinent part reads as follows:

No money shall be drawn from the State treasury but for appropriations made by law. All moneys for the support of the State government and for all other State purposes as far as can be ascertained or reasonably foreseen, shall be provided for in one general appropriation law covering one and the same fiscal year; » * *.

Again, we face a specific and explicit constitutional prohibition standing in the way of the action sought to be undertaken.

We recognize that it is difficult to deal in terms of constitutional absolutes. Constitutional interpretation is a delicate, sensitive and flexible process. Yet we cannot at the present time foresee a state of affairs or set of circumstances which would justify this proposed encroachment upon the prerogative of another branch of government.

Other reasons as well suggest that the Court should exercise self-restraint. Since this Court’s decision several years ago there has been no lack of energetic and thoughtful attention given to the problem we are considering. It has been the almost constant concern and preoccupation of the Legislature and of the Commissioner of Education. While these considerable efforts have thus far been unsuccessful, we should nevertheless await their fruition. At the very *383least the step here contemplated should not he taken before anyone yet knows what is meant by “a thorough and efficient” education. The elusive concept has many ingredients of which fiscal considerations are but one. No one knows today which school districts in the State may or may not be fully meeting their constitutional obligations. This point is made clear in the thoughtful and penetrating editorial entitled “Courts Cannot Encroach upon the Powers Belonging to the Executive or Legislative Branches of Government” appearing in the New Jersey Law Journal on April 24, 1975. (98 N. J. L. J. 356.) Surely, all constitutional restraints aside, as to any particular school district, there should first be a determination of legitimate fiscal insufficiency before supplying a judicially granted increase in state aid beyond the amount set by the Legislature, just as there should be a finding of overabundance of funds before invoking a judicially-mandated decrease.

Finally, we acknowledge that our position of restraint may very well be at odds with what may be seen as the most expeditious and efficient method of achieving final resolution of this troublesome ease: exercise of the Court’s presumed power itself to undertake, as the majority does today, the necessary financing. But restraint derived from a perceived limitation on the judicial power at this moment does maintain some semblance of a working balance between our three branches of government. Mr. Justice Brandéis once observed:

The doctrine of the separation of powers was adopted * * * not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy. [Myers v. United States, 272 U. S. 52, 293, 47 S. Ct. 21, 85, 71 L. Ed. 160, 242-43 (1926) (dissenting opinion).]

This doctrine deserves more than the ceremonial bow given it by the majority en route to its discovery of the *384requisite authority to act. This power it draws not from the Constitution but from a conviction that since it must act, it must therefore also have the power to act. The present circumstances do not yet compel us to find that we must, out of sheer necessity, have that power. While ours is an imperfect resolution, it better preserves for the future the integrity of the institutions of this government.

For the order — Chief Justice Hughes, Justices Sullivan, Pashman and Schreiber and Judge Coneord — 5.

Against the order — Justices Mountain and Clieeord — 2.

In the course of his opinion for the Court, Chief Justice Vanderbilt had this to say:

The doctrine [separation of powers] * * * has not only been accepted as a cardinal principle of American constitutional law but has been relied upon from our earliest days as a nation as a fundamental and indispensable bulwark against despotism. ** * Lord Acton’s aphorism merits quotation at this point: “Power tends to corrupt and absolute power corrupts absolutely.” Aeton: Essays on Freedom and Power (1948). The doctrine of the separation of powers is the great contribution of Anglo-American lawyers *379to the prevention of absolutism and the preservation of the rights of the individual against the state. [2 N. J. at 363-64.]

The Court’s reliance on Mills v. Bd. of Educ., 348 F. Supp. 866 (D. D. C. 1972), is misplaced. In Mills the District Court found a violation of equal protection in the school district’s failure to provide an education for mentally handicapped children. The Board of Education asserted that no funds had been appropriated by Congress for that purpose. We suggest that the court was not persuaded by that contention because it was obvious that Congress intended no such restricted use of the appropriated funds and the Board was simply misinterpreting the appropriation law. However, even assuming the majority’s interpretation of Mills is correct, we take notice of the fact the defendants there were not the executive and legislative branches of the federal government, but rather the Board of Education and the Commissioner of the District of Columbia. And they were directed merely to redistribute the funds made available to them.