As Abbott Returns to Supreme Court, Familiar Faces Play Pivotal Roles

John Mooney | April 21, 2011 | Education
Three judges and two opposing attorneys are central to the fate of school funding fight

The courtroom inside the Hughes Justice Center was a little more crowded than usual yesterday, even for an Abbott v. Burke case, as all eyes were on the state Supreme Court to see what it will do next.

The court — just five justices sitting — was hearing oral arguments over the latest Abbott challenge and whether Gov. Chris Christie’s and the legislature’s $1 billion in state aid cuts this year left schools unable to provide the “through and efficient” education the state constitution requires.

The stakes are high, not just for the schools and their students but also for the state budget, which could suddenly see a huge budget hole, if the court is so inclined.

But in a public session that ran overtime, that was just part of the drama yesterday on a court that itself is in tumult, not to mention a former justice making a cameo return of his own.

Here were five individuals in starring roles, at least yesterday, including one who barely said a word:

Jaynee LaVecchia, associate justice

She didn’t wait long, letting the lawyer for the plaintiffs finish a brief opening statement before she asked a blunt question: whom exactly was he representing?

Credit: John O'Boyle/Star Ledger
Justice Jaynee LaVecchia
It’s at the core of the case, and apt for the author of the last Abbott decision in 2009. Is this a matter for just New Jersey’s poorest students, especially those in its so-called Abbott districts like Newark, Camden and Paterson, or for all students in New Jersey?

The lawyer, David Sciarra, pointed out that the Abbott case isn’t really about just Abbott districts any more, not since the 2008 School Funding Reform Act (SFRA), which extended funding to all districts with at-risk students.

The opening exchange set the tone. LaVecchia was going to be front and center, leading the questions to attorneys on both sides. And she saved the zingers for the state’s lawyer, Peter Verniero.

For instance, how can the state contend two years ago — albeit under a different administration — that the SFRA provides a constitutionally compliant education and now come back and say underfunding it was also OK.

She described the funding formula as prescribed two years ago as “tablets from the mountain.”

Yes, she said, the state is in fiscal crisis — its main argument — but does that allow it to take constitutional short cuts?

“Judicial decree is not just walked away from, and that is what you are asking us to do,” she said to Verniero.

Court watchers have learned not to read too much into the words spoken by judges in oral arguments. The ones that will really count may be LaVecchia’s next words, as a prime candidate to write the impending Abbott decision.

Peter Verniero, former associate justice and state’s counsel

Verniero, a former state Attorney General and associate justice on this very court, had a tough job — and a tough audience.

Now in private practice since leaving the court in 2004, Verniero was brought in by the Christie administration a month ago after a state Superior Court judge finished fact-finding hearings that clearly favored the plaintiffs.

Not only was he facing a skeptical court, but he did so with some of the biggest guns in the Christie administration sitting in the front row behind him: Christie’s counsel, his chief of staff, the acting state education commissioner, and the attorney general herself, Paula Dow.

Known for being thoughtful and even a little soft-spoken, Verniero began amiably: “May it please the court.”

And it was rough sliding from there. The centerpiece of his argument is that the state’s fiscal crisis has left difficult choices, and the cuts in aid this year were among them. He said for the court to order their immediate reinstatement could cause “irreparable harm.”

“I just ask you to consider the implications of $1.6 billion or some subset of that,” he said late in the questioning, which went far longer than that of Sciarra. “Give us the opportunity and breathing room to work our way out of this crisis.”

There was more to his argument, plenty more. He said that the cuts, while steep, still left schools providing an adequate education, a long way from the early days of the Abbott litigation.

He said other reforms are underway in terms of school and teacher accountability, which will bring stronger change than dollars ever could at this point, the main political argument from Christie these days.

Verniero disclosed for the first time that the Christie administration, in fact, would begin a new review of the school funding law to determine if its requirements for so-called adequacy were indeed sufficient or too generous, a process that he said could take a year.

But he kept coming back to “good faith” and asking the court to let the executive and legislative branches determine what is best.

“Litigation, even constitutional, has its limits,” he said, citing separation of powers and other sacrosanct lines. “We cannot in the name of the constitution violate the constitution itself.”

Barry Albin, associate justice

As much as LaVecchia led the questioning, Albin was a close second. Known to be blunt, he had some tough questions of his own – especially of Verniero.

In one twist, he asked about the so-called millionaire’s tax at the center of political dispute for two years. The measure expired in 2009, and while Democrats have pressed for its reinstatement, Christie vetoed the bill and said he would never approve it. The repealed tax has cost the state about $1 billion in revenues.

The state said it had no money to provide districts, he said, but this was not the first time it had been in a fiscal hole.

“I know you are still in a fiscal crisis,” Albin said, “but when the promise was made [to fully fund the formula in 2009], there was a $1 billion funding source and now we’re $1 billion less.”

Albin also was the most specific about programs in place in schools, and the teachers and services that have been cut. “You can’t teach children without teachers, it’s as easy as that,” he said at one point.

And he was most critical of Verniero’s claims of good faith.

“Nobody is accusing you of not acting on good faith,” Albin said. “These are terrible fiscal times, no question. But to a student who has a fundamental right to a thorough and efficient education, does it make a difference if you are acting in good faith and his right still isn’t being met?”

Yet he was also the one who noted the irony of the deliberations, the state now resisting a school funding formula it devised, and the plaintiffs defending the law it once fought.”

“You fought tooth and nail against this same statute,” he told Sciarra.

David Sciarra, executive director of the Education Law Center

Certainly not new to the podium, Sciarra was as relaxed as he’s even been before the court in this epic case. After the favorable fact-finding report, the better legal cards were in his hand, and the justices were asking the tougher questions of his opponent.

But that didn’t mean he didn’t have work to do, if nothing else to lay out exactly what he was proposing to the court. And while sometimes a fiery advocate, Sciarra’s an adept politician as well, knowing the magnitude of what the justices could decide — and the potential backlash it could bring.

So if the court needed a roadmap, Sciarra appeared more than willing to provide one. He spoke of the need to “remediate” the cuts and immediately return funding to districts, but was diplomatic in not demanding it be done all at once. He kept it to broader terms, asking for progress, but real progress.

“The serious harms of this year will only carry over to the next year and the next without a remedy of this court,” he said.

Sciarra also focused on at-risk students, the ones most harmed by the cuts, he said, in seeing their tutoring and other support programs scaled back.

“This is not something that hangs by a thread or is along the margins,” he said. “It gets to the very core of the kinds of programs that the program was designed to deliver.”

Roberto Rivera-Soto, associate justice

The justice is maybe the court’s most controversial, outspoken in his conservatism and the one who at least in oral arguments has been most critical of the Abbott plaintiffs. It has led to engaging exchanges in the past.

Yesterday, he barely said a word, asking no questions of either side.

A signal that he had already made up his mind? Or knowledge that the court — or at least its majority — had done so? Or even maybe part of his ongoing protest to the standoff that has left the court down a member and prompted the promotion of appellate court judge Edwin Stern to fill the vacancy for now?

Christie last year refused to reappoint former Justice John Wallace, and instead picked a new appointee, Anne Patterson, whom the Democrat-led state Senate has refused to confirm. That led the court to elevate Stern for the time being, but the tug-of-war has only heightened Christie’s criticism of the court for what he claims is its activist rulings, including in the Abbott case.

Whatever Rivera-Soto’s thinking, it proved a notable day for silences in the courtroom, with Justice Helen Hoens also barely asking questions beyond two technical points and Stern only asking a few himself.

In addition, two of the seven seats on the bench were empty altogether.

Chief Justice Stuart Rabner has long recused himself from the Abbott deliberations, given he was attorney general under former Gov. Jon Corzine when SFRA was written.

An unexpected recusal came when the court yesterday announced Justice Virginia Long would also sit out, after hearing the first part of the case this winter. Justices do not typically explain why, but a court spokeswoman alluded to a potential conflict of interest with parties involved in the fact-finding portion of the case.

That leaves just five justices hearing the case and making the decision that could have repercussions well beyond schools and even school equity. The court set no timetable, but an expedited schedule indicates it will rule by the time the final fiscal 2012 budget is struck.

“Thank you, to both counsels,” LaVecchia said in closing, before the five justices filed out. “We’ll take it under advisement.”

Editors Note: An initial version of this story said Christie allowed the “millionaire’s tax” to expire. It expired while former Gov. Jon Corzine was in office, and Christie has since vetoed a bill to reinstate it.