HONORABLE DANIEL J. REIMAN, MAYOR AND BOROUGH OF CARTERET, MIDDLESEX COUNTY V. NEW JERSEY STATE DEPARTMENT OF EDUCATION, 12/27/05 (#465-05)

#465-05 (OAL Decision http://lawlibrary.rutgers.edu/oal/html/initial/edu08564-04_1.html)
HONORABLE DANIEL J. REIMAN, MAYOR :
OF CARTERET, INDIVIDUALLY AND IN
HIS OFFICIAL CAPACITY, AND BOROUGH :
OF CARTERET, MIDDLESEX COUNTY,
:
PETITIONERS,
: 	COMMISSIONER OF EDUCATION
V.
: 	DECISION
NEW JERSEY STATE DEPARTMENT OF
EDUCATION, 	:
RESPONDENT. 	:
____________________________________________
SYNOPSIS
Petitioners filed a Verified Petition of Appeal alleging that the children of the Carteret School District have been
and continue to be denied their right to a thorough and efficient (T&E) education under 	N.J. Constitution,
Article VIII, § 4, ¶ 1. Additionally, petitioners allege that the Borough cannot increase its local tax levy and, as
a 	result, 	that 	the 	Comprehensive 	Educational Improvement 	and 	Financing 	Act 	of 	1996 	(CEIFA) is
unconstitutional as applied to the Borough. Respondent contends that: the Borough -- as a municipality -- lacks
standing to challenge the District Factor Group (DFG) classification of the Carteret School District, and only the
District itself, as the entity subject to the rules of the State Board of Education, may raise the claim at issue; the
Borough may not raise the claims of its taxpayers; and the Mayor, as both a taxpayer and Borough official, lacks
standing to bring the claims in issue. Respondent filed a motion for summary decision seeking dismissal of the
petition.
The ALJ identified standing as the threshold issue in this matter, and found that: Carteret Borough -- and Mayor
Reiman in his official capacity -- lack standing to challenge the respondent’s Abbott classification of its school
district; the responsibility for asserting T&E claims lies with the Borough’s District Board of Education; and
citizen Reiman may not maintain this action as a 	taxpayer because he has failed to allege actual harm or a
substantial likelihood of same based on the respondent’s classification of the Carteret School District. The ALJ
concluded that the respondent’s motion for summary decision should be granted, and the petition dismissed.
Upon a full and independent review of this matter, the Commissioner determined that there was no genuine
issue of material fact in dispute, and granted summary decision to the Department. In so deciding, she found,
inter alia, that: petitioners’ claim is derivative to the Board’s claim; petitioning Borough is barred from bringing
its claim as it is a creature of the State; the T&E clause mandates a system of educational opportunity for
children, not equitable tax burdens, and accordingly the mayor as an individual citizen is precluded from
maintaining this action based on the T&E constitutional provision. 	The Commissioner adopted the Initial
Decision as the final decision in this matter, and dismisses the petition.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader. It has
been neither reviewed nor approved by the Commissioner.
December 27, 2005

OAL DKT. NO. EDU 8564-04
AGENCY DKT. NO. 344-9/04
HONORABLE DANIEL J. REIMAN, MAYOR 	:
OF CARTERET, INDIVIDUALLY AND IN
HIS OFFICIAL CAPACITY, AND BOROUGH 	:
OF CARTERET, MIDDLESEX COUNTY,
:
PETITIONERS,
: 	COMMISSIONER OF EDUCATION
V.
: 	DECISION
NEW JERSEY STATE DEPARTMENT OF
EDUCATION, 	:
RESPONDENT. 	:
__________________________________________
The record of this matter and the Initial Decision of the Office of Administrative Law
(OAL) have been reviewed. Petitioners’ exceptions and the Department’s reply thereto were submitted
in accordance with N.J.A.C. 1:1-18.4 and were considered by the Commissioner in reaching her
decision.
In their exceptions, Petitioners claim that -- although this matter arises in the context of
seeking Abbott District status for the Carteret School District (District) -- the relief sought on behalf of
the Borough of Carteret (Borough) and its taxpayers in this matter is distinct from that sought in the
typical Abbott petition brought by a board of education or parents of school children in the district.
(Petitioners’ 	Exceptions 	at 	1) 	Petitioners 	submit 	that 	the 	Legislature’s 	enactment 	of 	the
Comprehensive Education Improvement and Financing Act (CEIFA) of 1996 in response to the
Supreme Court mandates in Abbott v. Burke, 119 N.J. 287 (1990) (Abbott II) usurped the control of
municipalities and their voting constituents over the portion of the municipal tax levy that must be
raised in order to meet pre-calculated and compulsory per-pupil funding levels because, under CEIFA,
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the State determines the amount needed to provide the thorough and efficient (T&E) education
mandated by the State’s constitution and “the Borough has no choice but to exact the obligatory local
share from its constituent taxpayers and turn those tax monies over in their entirety to the local school
district.” (Ibid.)
Petitioners assert that the Administrative Law Judge’s (ALJ’s) determination is fatally
flawed and must be rejected because the ALJ mischaracterized the nature of their appeal and the relief
sought. (Id. at 3) Pointing to the petition at pages 43-58, petitioners aver that their actual claim is that
the Department’s failure to properly designate the Carteret School District as eligible for Abbott status
has resulted in an ongoing disparate and burdensome tax levy upon the Borough and its taxpayers; as a
result, the strictures of CEIFA are unconstitutional as applied to the Borough and its taxpayers. (Ibid.)
Petitioners allege that the ALJ “transposed and otherwise contorted the nature of the claims to make it
appear that the Petitioners are asserting that it can no longer suffer a tax levy that has been ‘placed’ by
the ‘State Department of Education,’ and that ‘[a]s a result, petitioners contend that the children of the
District’ are being denied T&E.’” 	(emphasis in text) 	(Id. at 5, quoting Initial Decision at 5)
Petitioners maintain that they are not merely asserting a T&E claim on behalf of the District and its
pupils, but, instead, are bringing their own claim to vindicate their own interests. (Ibid.) According to
petitioners, when a municipality is overburdened to an extent that it interferes with its ability to fund a
T&E education, it is not just the school district that suffers the consequences, because the municipality
itself is now prohibited -- under CEIFA -- from failing to raise the requisite T&E funds for the District.
(Ibid.)
With respect to the nature of the relief sought, petitioners claim that the ALJ again
pigeonholed the Borough’s claims into the type that only a board of education may bring by miscasting
the relief sought as being limited to a change in the District Factor Group (DFG) ranking of the
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District. 	(Ibid.) 	Petitioners note that districts with a DFG ranking of “B” can be designated Abbott
Districts if they can demonstrate additional substantial economic hardship and that a DFG ranking of
“A” does not automatically confer Abbott status. 	(Id. at 6) 	The relief they are actually seeking,
petitioners maintain, is the relief set forth in the “Wherefore” clause of the petition -- that the District
be afforded Abbott District status. (Ibid.)
Moreover, petitioners argue, in granting the Department’s motion to dismiss, the ALJ
failed to grant all legitimate inferences in favor of petitioners as set forth by the Supreme Court in
Brill v. Guardian Life Insurance Company of America et al., 142 N.J. 520 (1995). (Id. at 6-7) In this
regard, petitioners contend that, instead of inferring that petitioners have a claim of entitlement to the
relief sought, the ALJ “approached his analysis from the inappropriate perspective that the Petitioners
had failed to state a claim that ‘should be granted,’ (decision at p.6), rather than observing the requisite
standard of failure to state a claim upon which relief can be granted.” 	(emphasis in text, Id. at 7)
Petitioners further contend that the discovery necessary to resolve disputed material facts -- “such as
the percent differential between the municipality’s equalized tax rate and the State tax rate and the use
of Free and Reduced Lunch Figures” -- has not even begun, and that the Department based its motion
on the premise (disputed by petitioners) that certain indicators are dispositive and insufficient to
demonstrate conditions of severe poverty. (Id. at 8)
Pointing to Schierstead v. City of Brigantine, 29 N.J. 220 (1959) (wherein the
Appellate Division reversed the Law Division’s ruling, stating that the matter should not have been
decided on such a barren record by the trial judge) and Muniz v. United Hospitals Medical Ctr.
Presbyterian Hosp., 153 N.J. Super 79 (App. Div. 1977) (wherein the dismissal was reversed as
premature because plaintiffs were not given the opportunity to amend their complaint and to conduct
discovery), petitioners maintain that there is no justification for dismissing this matter outright in that
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the record in this matter is similarly barren of findings on the key issues. 	(Id. at 7-8) 	Additionally,
petitioners assert that it may be reasonably inferred from their pleadings that they are entitled to the
relief sought in that “it is clear that such relief is within the authority and ability of the Department to
grant,” and the process outlined in the Commissioner’s April, 2003 “Designation of Abbott Districts,
Criteria and Process” document permits relief to be granted on a sliding scale. 	(Id. at 8) 	Since
petitioners have stated a claim on which relief -- whether partial or absolute -- may be granted,
petitioners argue that there is no justification for dismissing this matter outright. (Ibid.)
With respect to the petitioning Borough’s standing to bring its claims against the
Department, the Borough takes issue with the Department’s assertion that it lacks standing to bring its
claims because it is a “creature of the state,” asserting that the Borough has as much right to bring a
claim as a board of education does. In support thereof, the Borough points to Board of Ed. of Twp. of
East Brunswick v. Township Council of Twp. of East Brunswick, 48 N.J. 94, 108 (1966), citing
Botkin v. Mayor and Council of Borough of Westwood, 52 N.J. Super. 416 (App. Div. 1958),
app. dismissed 28 N.J. 218 (the Borough herein avers the borough in East Brunswick “was found to be
the sole party in actual interest to proceedings challenging its issuance of a referendum on a school
governance issue” 1), in arguing that an independent governing body that will be adversely impacted
by an erroneous action of another governing body has the right, if not the obligation, to seek review.
(Id. at 9) Moreover, the Borough contends it has a direct interest sufficient to afford it standing to do
so. 	(Ibid.) 	Referencing East Brunswick, supra, citing Inglewood v. Los Angeles, 451 F2d 948 and
Rogers v. Brockette, 588 F2d. and Botkin, supra, the Borough avers that it is well-settled that
municipalities may sue and be sued in civil actions and that “a municipality may maintain an action,
including constitutional claims against another municipality, a county, the State, or State department,
such as here, provided the municipality is not attacking the laws which created it. 	(Id. at 9-10) The
1 It is noted that the Commissioner was unable to locate this finding in the Botkin decision.
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Borough asserts that there is no dispute that the Borough was not created by either the Department of
Education or the State’s education laws, but has been unfairly impacted by them. (Id. at 10)
Moreover, the Borough contends that the Abbott cases, specifically Abbott II, supra
at 300-301, stand for the premise that “an Act of the Legislature, even having been declared facially
constitutional, may be *** ‘unconstitutional as applied’ to individuals, and/or to local governmental
entities.” (emphasis in text) (Ibid.) 	Thus, the Borough contends, the ALJ misapplied the decision in
Stubaus v. Whitman, 339 N.J. Super. 38 (2001), cert. den. 171 N.J. 442 (2002), because he failed to
acknowledge that the Stubaus matter involved a claim that CEIFA was unconstitutional on its face, a
claim not being asserted by petitioners herein. (Ibid.) The Borough also maintains that the ALJ failed
to recognize that what the Appellate Division in Stubaus actually found was that “the school district
could not assert a claim for tax relief on behalf of the taxpayers of the municipality, not that a
municipality was prohibited from asserting such a claim,” nor does Stubaus stand for the proposition
that a municipality must first demonstrate that the taxpayers are incapable of bringing their own claim.
(Ibid.)
Additionally, the Borough points out that three boroughs raised legal challenges to the
equities of the taxation scheme with respect to the funding of the Manchester Regional High School
District on their own behalf and that of their constituent taxpayers in matters that were litigated this
year before the Appellate Division and the Supreme Court in In the Matter of the Petition for the
Authorization to Conduct a Referendum on the Withdrawal of North Haledon School District from the
Passaic County Manchester Regional High School District, Dockets No. A-2901-01 and 5788,
respectively. 	(Id. at 11) At no time during this litigation, the Borough contends, was the question of
the boroughs’ standing to bring the action raised nor have the boroughs ever been required to show that
the taxpayers would have difficulty challenging their respective school tax burden on their own.
5

(Id. at 11-12) The petitioning Borough herein asserts that, in the North Haledon matter, standing was
conferred as a matter of course, notwithstanding the status of the boroughs as “creatures of the state.”
(Id. at 12) 	Accordingly, the Borough reasons, petitioners in this matter have a similar right to
challenge the school tax burden being imposed on the Borough and its taxpayers. (Id. at 12)
The Borough also notes its disagreement with the ALJ’s conclusion that standing should
be denied to the Borough because no court in this State has yet recognized a borough’s standing in a
case of this nature. 	(Ibid.) 	The Borough submits that the absence of any precedential decisions does
not preclude standing in a case of first impression, such as the one herein, and argues that “in In re
Camden County, A Body Politic of the State of New Jersey, 170 N.J. 439 (2002), the New Jersey
Supreme Court made it clear that the ‘only’ requirement needed to confer standing is a substantial
likelihood of some harm visited upon the plaintiff in the event of an unfavorable decision.” (emphasis
in text) (Ibid.) 	In Camden County, the Borough avers, the Supreme Court reversed an Appellate
Division determination that had denied standing to a governmental entity which was obligated by
statute to contribute to funding operations run by that agency but were not within the entity’s purview,
finding that “‘[a]lthough the mere assertion of a public interest -- even by a governing body --
ordinarily is not sufficient to acquire standing to seek judicial review of an administrative agency
decision, the existence of a financial interest that is affected directly by the agency action will confer
standing on a governing body.”’ 	(emphasis supplied in text) 	(Id. at 13-14, citing Camden County
at 448) The petitioning Borough, therefore, contends that the Court’s holding in that matter -- that the
County was entitled to standing in an administrative hearing where a full record could be developed
before the State agency made a final determination on the challenged statutory entitlement -- should be
applied in this matter so as to permit the Borough to participate in the development of a record, and to
argue its case on the merits of its claim. (Id. at 15)
6

The Borough further excepts to the ALJ’s conclusion that its petition should be
dismissed because the Carteret Board of Education has a more direct interest in protecting its students'
right to a thorough and efficient education. 	(Ibid.) 	Petitioners note, as clarified above, that their
“claim arises from allegations of harm to the taxpayers and the public fisc, in which the interest of the
Borough is clearly more direct than the Board,” and argues the Borough is thus properly pursuing this
claim on behalf of the taxpayers and other citizens and residents to whom it stands as parens patriae
within the ambit of its political responsibility. 	(Id. at 15-16) 	The Borough emphasizes that it is the
Borough’s responsibility to provide mandatory governmental services and competing local service and
that its responsibility includes a fiduciary responsibility to the individuals from whom funds are
collected, and on whose behalf they are administered and disbursed. 	(Id. at 16) 	In this regard, the
Borough claims that it meets the requirement for standing because it has a real and sufficient stake in
the outcome of whether a district has Abbott status because the gap between educational funding and
educational need must be bridged with local taxes, which results in a demonstrable impact upon both
its constituent taxpayers and its own municipal finances. (Id. at 16-17)
With respect to whether the petitioning Mayor has standing to bring this action,
petitioners vigorously except to the ALJ’s conclusion that the Mayor lacks standing because “‘he has
not alleged that his current tax burden is …disparate.’” 	(emphasis in text) 	(Id. at 17, quoting
Initial Decision at 12-13) 	Petitioners note that it is undisputed that the Mayor is a resident and a
taxpayer of the Borough and petitioners have alleged that the Borough’s taxpayers are suffering an
ongoing disparate tax burden. 	(Id. at 17-18) 	Thus, it follows, petitioners argue, that the Mayor’s tax
burden is disparate by definition. 	(Id. at 18) 	Moreover, petitioners point out that the ALJ made this
finding having denied standing to the Borough to bring an action such as this on the basis that such
taxpayers should bring their own claims, and the Mayor -- as just such a taxpayer – therefore does
7

have standing. 	(Ibid.) 	In this regard, petitioners aver that the ALJ misapplied Carlin v. City of
Newark, 36 N.J. Super. 74 (Law Div. 1955) as precluding the Mayor from bringing his claims in his
official capacity on the basis that his right to bring his action “flowed from his private right to sue,”
and then failing to apply that same premise to the Mayor’s right to maintain the within action in his
private capacity. (Ibid., quoting Initial Decision at 8)
Petitioners also take exception to the ALJ’s conclusion that the Mayor lacks standing
“because he failed to demonstrate which and how municipal services will be impacted by an
unfavorable decision,” claiming that Brill, supra, requires an assumption that the alleged adverse
impact is actionable for purposes of the Department’s motion. 	(Id. at 19) 	Petitioners assert that the
Supreme court in Printing Mart-Morristown v. Sharp Electronics, Inc. 116 N.J. 739, 746 (1989)
established the standard for determining the adequacy of a pleading as “whether the cause of action is
suggested by the facts” and that the Commissioner in George Osborne v. Board of Education of the
City of Lakewood, Ocean County, decided by the Commissioner August 26, 2003, aff’d State Board
April 7, 2004, aff’d App. Div. A4775-03T2 May 4, 2005, concluded that “the petitioning taxpayer,
merely by virtue of being a taxpayer, was able to demonstrate a sufficient stake in the outcome of the
proceedings to confer standing to pursue his constitutional challenge.” 	(emphasis in text) 	(Ibid.)
Petitioners thus conclude that the Mayor herein has similarly demonstrated that, as a taxpayer, he is
and will be directly impacted by the Department’s determinations as to the District’s Abbott status,
which governs the calculation of the Borough’s local share under CEIFA of 1996. 	Petitioners,
therefore, request that the Initial Decision be rejected in its entirety and this matter be returned to the
OAL for proceedings on the merits. (Id. at 19-20)
In response, the Department maintains that the ALJ correctly found petitioners’ claim to
be derivative to the claims brought by the Carteret Board of Education in that petitioners’ appeal
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alleges that: 	1) the Borough’s children have been denied their right to a T&E education under the
New Jersey Constitution; 2) the school district has been unable to provide a T&E education and its
inability to do so can not be remedied by different programmatic and fiscal choices; 3) the Borough’s
children have been denied a T&E education on a continuing basis; and 4) there are alleged District
educational failures. (Department’s Reply Exceptions at 1-2) 	Notwithstanding the raising of separate
allegations regarding the effect of CEIFA on the Borough and its taxpayers in the petition, the
Department argues, the relief sought by petitioners herein is identical to that sought by the Board;
namely, that CEIFA as applied to the District violates the T&E clause of the State constitution.
(Id. at 2) Accordingly, the Department contends, petitioners’ claim arises under the T&E clause and is,
thus, derivative to the Board’s claim. (Ibid.)
Citing Robinson v. Cahill, 62 N.J. 473, 513 (1973), cert. denied, 414 U.S. 976 (1973),
the Department asserts that the T&E clause was not intended to “insure statewide equality among
taxpayers,” but, instead, was to insure that students be equipped to compete with relatively advantaged
students so that they could become citizens and competitors in the labor market. (Id. at 2-3) In that it
is the school district which is enlisted by the State to provide its students with a T&E education and it
is the State which ensures that school districts have the means to satisfy the constitutional obligation,
the Department argues, it is the District, not petitioners herein, that has standing to raise a T&E claim.
(Id. at 3) 	Moreover, the Department argues, contrary to the petitioners’ implication that CEIFA
somehow changes the scope of the court’s discussion of the T&E clause in Abbott II, nothing within
CEIFA suggests that a Borough has a direct interest under the statute to support a T&E claim against
the Department. (Id. at 4) Since CEIFA focuses on the child receiving a T&E and the school district
that must deliver the constitutionally-guaranteed education, the Department contends, petitioners’
attempt to distinguish their claim from the T&E claim raised by the Board must be rejected. (Ibid.)
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The Department also takes issue with petitioners’ contention that CEIFA directly affects
the Borough because the Borough is prohibited from failing to raise the required T&E funds for the
District, claiming that such contention is wholly without merit because it is the District, not the
municipality, which creates the school budget and the initial determination of the amount of local tax
levy to support the budget, pursuant to N.J.S.A. 18A:7F-5 and N.J.A.C. 6A:23-8.1(b). 	(Id. at 5)
Moreover, pointing to Stubaus, supra, at 45-46, the Department avers that districts have some limited
discretion in determining the amount of local tax levy and that a district may increase the local tax levy
by going beyond the T&E minimum or decrease the local tax levy by spending below the T&E
minimum budget. 	(Ibid.) 	The Department notes that the school districts -- not the municipalities --
must submit their budgets to the voters for approval and that, in the event that voters reject a proposed
budget that is within the T&E range and the municipality reduces the budget, the district may appeal
the reductions to the Commissioner on the grounds that the amount is needed to meet core curriculum
content standard or long-term planning and budgeting. (Id. at 5-6) Thus, the Department reasons that
the Borough’s argument should be rejected in that it is the District that must act under CEIFA.
(Id. at 6)
The Department further points to the Court’s discussion in Abbott II at 355-357, where
municipal overburden was discussed in the context of how the poor urban school districts were
laboring under tax rates at a level well-above the State average; the Court noted that the school district
suffers the consequences of municipal overburden, and it is the school district that is prevented from
raising additional funds for its education program. (Id. at 6) Accordingly, the Department concludes,
the ALJ properly concluded that petitioners’ claim was derivative to the District’s claim. (Ibid.)
With respect to petitioners’ argument that the ALJ did not grant all inferences in favor
of the Borough in determining whether petitioners had failed to state a claim for which relief could be
10

granted as set forth in the Department’s motion to dismiss, the Department maintains that the ALJ did
not rule on the Department’s argument that petitioners failed to demonstrate the educational and
poverty failure necessary to bring their claim under the T&E clause, but decided the Department’s
motion solely on the issue of standing. (Id. at 7-8) Citing New Jersey Citizen Action v. Riviera Motel
Corp., 296 N.J. Super. 402, 422 (App. Div. 1997), appeal dismissed, 152 N.J. 361 (1998), the
Department contends that a dismissal for lack of standing amounts to a refusal by the court to resolve
the matter as opposed to dismissal for failure to state a claim, which occurs only after the court has
agreed to resolve a controversy. 	(Id. at 8) 	Thus, the Department concludes, the ALJ applied the
correct standard in dismissing petitioners’ claim. 	(Id. at 9) 	Moreover, the Department avers,
petitioners’ argument that the ALJ failed to apply the proper standard of review must be rejected
because the ALJ accepted the allegations in the petition as true for purposes of reviewing the
Department’s motion, and that petitioners failed to support their argument that the ALJ did not draw all
legitimate inferences in their favor in that they did not cite to any specific factual conclusions within
the Initial Decision that support their assertion. (Ibid.)
Turning to the question of the Borough’s standing, the Department argues that the
Borough is barred from bringing its T&E claim because it is a creature of the State and -- as found by
the ALJ -- is, thus, not entitled to invoke the protections of the New Jersey Constitution against the
State. 	(Id. at 10) 	In so arguing, the Department points to Williams v. Mayor and City Council of
Baltimore, 289 U.S. 36, 40, 53 S.Ct. 431, 432, 77 L.Ed. 1015 (1933), 	providing that a municipality,
created by the state, may not invoke constitutional privileges or immunities against its creator; City of
Newark v. New Jersey, 262 U.S. 192, 196, 43 S.Ct. 539, 540, 67 L.Ed. 943 (1923), providing that a
municipality cannot challenge state action on Fourteenth Amendment equal protection grounds; and
City of Trenton v. New Jersey, 262 U.S. 182, 188, 43 S.Ct. 534, 537, 67 L.Ed. 937 (1923), providing
11

that a municipality holds its powers and privileges subject to the sovereign will. (Ibid.) Moreover, the
Department notes its agreement with the ALJ’s analysis that Board of Educ. of the Township of
E. Brunswick v. Township Council of E. Brunswick, 48 N.J. 94 (1966) does not support petitioners’
argument that they have standing to bring their constitutional claim against the Department in that the
E. Brunswick matter involved a municipality and a school district wherein the court found that the
board of education was not prevented from bringing its claim against the municipality because the
local board had a direct interest in its claim, and previous cases had occurred between municipalities
and autonomous municipal agencies. (Id. at 11)
Additionally, the Department notes that the ALJ distinguished petitioners’ claim from
Bergen County v. Port of New York Authority, 32 N.J. 303 (1960), wherein Bergen County (County)
brought a claim alleging that a State statute exempting the Port Authority property from taxation was
unconstitutional. (Id. at 11-12) The court therein found that a “local governmental body may act with
respect to property or power it holds for the benefit of its citizens but it may not generally bring a claim
on behalf of its citizen taxpayers.” 	(Id. at 12) 	Moreover, the Department avers, no court has
recognized that a Borough or mayor in his official capacity may bring a claim that CEIFA is
unconstitutional as applied on behalf of its taxpayers. (Ibid.) 	The Department observes that previous
T&E claims were either brought by the individual students and their parents or the school districts.
(Id. at 12-13)
With respect to petitioners’ argument that Stubaus, supra, is distinguishable because it
involved a school district’s standing to bring a third party claim on behalf of its taxpayers, not a
municipality, the Department argues that the overriding principle derived from Stubaus is that litigants
should be discouraged from asserting the constitutional rights of third parties. 	(Id. at 13-14) 	The
Department emphasizes that the ALJ noted the limited circumstances where litigants may assert the
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rights of third parties as set forth in Stubaus, as follows: 1) when a plaintiff finds it difficult to assert
his/her own claims; 2) when the third party’s rights are likely to be diluted or adversely affected unless
they are raised by a plaintiff holding a confidential relationship with the third party; and 3) when a
non-profit organization has sued on behalf of its injured members. 	(Id. at 13) 	In that none of these
circumstances are present in this matter, the Department concludes that the ALJ properly applied
Stubaus to petitioners’ appeal. (Id. at 14) The Department also contends that petitioners’ reliance on
North Haledon, supra, is misplaced because that matter involved a withdrawal of a municipality from
a regional high school district, not a municipality bringing a claim against a state agency for an alleged
T&E claim. 	(Id. at 14) 	Standing was not an issue in that matter, the Department maintains, because
standing was conferred by N.J.S.A. 18A:13-54 and -55. (Id. at 15) Moreover, the Department points
out, North Haledon did not involve a municipality bringing suit against the State, but, instead, was a
dispute between the constituent districts and their municipalities. (Ibid.)
The Department contends petitioners’ reliance on Camden County, supra, is also
unpersuasive because that matter arose from the County’s claim that its statutorily authorized
contractual obligation to provide a substantial portion of the cost of health benefits for employees who
become disabled and are incapacitated. 	Thus, it did not involve a County bringing a constitutional
claim against the State or one of its agencies. 	(Id. at 16) 	Moreover, the Department maintains, the
Department has not ordered the Borough to directly pay for the District’s provision of T&E, and it is
not the Borough -- but the taxpayers -- that will be required to pay more money if the local tax levy is
increased to accommodate the District’s educational needs. 	(Id. at 17) 	The Department argues that
petitioner’s 	claim, 	however, 	falls 	squarely 	within 	the 	limitations 	of 	standing 	as 	set 	forth 	in
Camden, supra at 447, wherein the court found that: 1) “a claim brought based on a perceived public
interest is too ‘generalized’ to confer standing;” 2) “a real and direct interest must be present before
13

granting a third party standing to seek a judicial review of agency action[,]…[c]ounty or local
governing bodies generally lack standing to challenge actions of governmental agencies merely
because they represent the public;” and 3) “[p]rotecting public interests is important, but it does not
take precedence over the need to prevent one governmental body from interfering with the actions of
another pubic body.” 	(Id. at 17-18) 	In this matter, the Department avers, petitioners’ interest is the
general tax burden. (Id. at 18) Thus, the Department argues, petitioners assertions with respect to the
alleged injury to their taxpayers are “too generalized” and do not take precedence over the State’s
interest in maintaining order within its governmental structure. (Ibid.)
Additionally, the Department asserts that petitioners cannot ignore that they “brought
their claim asserting a constitutional educational violation,” and that a claim brought pursuant to the
T&E clause is not concerned with the Borough’s ability to manage its fiscal and political obligations.
(Id. at 19) Thus, the Department reasons, “the Borough’s ability to manage its financial and political
obligations does not make its interests more direct than the District’s interests under a T&E claim.”
(Id. at 20) 	Moreover, the Department reiterates that municipal overburden as discussed in Abbott II
refers to overburden with respect to a school district, not a municipality, and to accept such a remote
interest as a basis of standing to bring a T&E claim would divert the focus from the education received
to general financial issues of the municipality, which is outside the intent of the T&E clause. (Ibid.)
Finally, with respect to the Mayor’s standing to bring his claim, the Department avers
that the Mayor is precluded in his official capacity from bringing a claim in this matter, noting that the
situation herein differs from that in Carlin v. City of Newark, 36 N.J. Super. 74 (Law Div. 1955)
because the claim brought by the Newark Mayor was not a constitutional claim, and his claim was
brought by that mayor in his individual capacity. 	(Id. at 21) 	Moreover, the Department’s position is
that Mayor Reiman also does not have standing to pursue a claim in this matter as an individual
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taxpayer because he has not demonstrated how he will be adversely affected by an unfavorable
decision by the Department. 	(Ibid.) In this regard, the Department notes its disagreement with the
Mayor’s assertion that he will have to pay the costs of a rising tax levy to support the District’s T&E
obligation, citing N.J.A.C. 6A:24-7.1(d)5 and Board of Education of the Township of Neptune v.
Department of Education, decided by the Commissioner October 20, 2003, in support of its contention
that the grant of Abbott status does not guarantee that the tax levy will not be increased. (Id. at 21-22)
Upon a thorough and independent review of the record, the Initial Decision, the parties’
exception arguments and the relevant case law, the Commissioner has determined that grant of
summary decision to the Department is appropriate in this instance. 	Pursuant to N.J.A.C. 1:1-12.5(b)
and 	Contini 	v. 	Bd. 	of 	Educ. 	of 	Newark, 	286 	N.J. 	Super. 	106, 	121-122 	(App. 	Div. 	1995)
(citing Brill, supra), summary decision may be granted in an administrative proceeding if there is no
genuine issue of material fact in dispute and the moving party is entitled to prevail as a matter of law.
In this regard, notwithstanding petitioners’ assertion to the contrary, there are no
“material facts” in dispute in this matter with respect to the threshold issue of whether petitioners have
standing to pursue their claims. Black’s Law Dictionary, seventh edition, at 610-611, defines “fact” as
“[a]n actual or alleged event or circumstance, as distinguished from its legal effect, consequence, or
interpretation” and a “material fact” as “[a] fact that is significant or essential to the issue or matter at
hand.” The issues characterized by petitioners as “material facts that remain in dispute” as set forth in
petitioner’s exceptions, such as “the percent differential between the municipality’s equalized tax rate
and the State tax rate and the use of Free and Reduced Lunch Figures,” are facts related to the
underlying merits of the case, not to the threshold issue of standing. “It is well-established that where
no disputed issues of material fact exist, an administrative agency need not hold an evidential hearing
in a contested case.” 	Frank v. Ivy Club, 120 N.J. 73, 98 (1990), citing Cunningham v. Dept. of Civil
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Service, 69 N.J. 13, 24-25 (1975). 	“Moreover, disputes as to the conclusions to be drawn from the
facts, as opposed to the facts themselves, will not defeat a motion for summary judgment.” Contini v.
Board of Education of Newark, 96 N.J.A.R. 2d (EDU) 196, 215, citing Lima & Sons, Inc. v. Borough of
Ramsey, 269 N.J. Super. 469, 478 (App. Div. 1994); In the Matter of the Tenure Hearing of Andrew
Phillips, School District of the Borough of Roselle, Union County, Commissioner’s Decision No. 129-
97, decided March 20, 1997; and In the Matter of the Tenure Hearing of Neal A. Ercolano, Board of
Education 	of 	Branchburg 	Township, 	Somerset 	County, 	Commissioner’s 	Decision 	No. 	140-00,
decided May 1, 2000. Additionally, the Commissioner agrees that the Department prevails as a matter
of law for reasons provided in the Initial Decision and explicated below.
Initially, the Commissioner rejects petitioners’ contention that the ALJ mischaracterized
the nature of their appeal and the relief sought. 	Petitioners’ appeal alleges, inter alia, that: 	1) the
children of the Carteret School District have been denied their right to a T&E education on a
continuing basis under the New Jersey Constitution (Petition at 9, No. 44); 	2) the District has been
unable to provide a T&E education, and its inability to do so cannot be remedied by different
programmatic and fiscal choices (Id. at 9, No. 43); 3) socioeconomic conditions make it impossible or
overly burdensome for the Borough to raise the additional taxes necessary to meet the District’s special
funding needs (Id. at 9, No. 46); 	4) the Borough is prohibited under CEIFA from failing to meet the
District’s funding requirements (Id. at 9, No. 48); 5) the Department’s failure to properly designate the
Carteret School District as eligible for Abbott status has resulted in an ongoing disparate and
burdensome tax levy upon the Borough and its taxpayers (Id. at 8-9, No. 41) and 6) CEIFA as applied
to the District violates the T&E clause of the State constitution (Id. at 10, No. 51).
Notwithstanding 	petitioners’ 	argument 	that 	the 	raising 	of 	separate 	allegations
applicable to the Borough’s taxpayers -- i.e., that the Department’s failure to properly designate the
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Carteret School District as eligible for Abbott status has resulted in an ongoing disparate and
burdensome tax levy upon the Borough and its taxpayers and, as a result, the strictures of CEIFA are
unconstitutional as applied to the Borough and its taxpayers -- the underlying premise of petitioners’
claim, as pled in their petition and noted above, is that CEIFA as applied to the District violates the
T&E clause of the State constitution. As set forth in Robinson, supra, at 513, the T&E clause was not
intended to ensure statewide equality among taxpayers, but, instead, was to ensure that disadvantaged
students were able to compete with those who were relatively advantaged. 	Accordingly, as the ALJ
properly determined, petitioners’ claim is derivative to the Board’s claim.
Moreover, since it is the school district, rather than the Borough, that has the obligation
to provide its students with a T&E education, it is the District that has the authority to challenge
Department determinations that it believes have had an adverse impact on its ability to provide its
students a T&E education. It is instructive that in Abbott II at 355-357, the Court noted that the school
district suffers the consequences of municipal overburden, and it is the school district that is prevented
from raising additional funds for its education program. 	Thus, although the Borough argues that the
adverse and disparate tax impact of the Department’s failure to classify the Borough’s school district
as an Abbott district gives it standing to challenge the Department’s Abbott classification of the
District, the Commissioner finds that such argument is beyond the weight of authority.
Additionally, as thoroughly discussed in the Initial Decision, New Jersey courts have
consistently held that municipalities have limited grounds upon which to challenge State action. 	As
noted in Stubaus, supra at 48, “courts generally recognize that political subdivisions of the State,
including municipalities and local boards of education, lack the legal capacity to challenge State action
based on equal protection grounds” (citations omitted). 	Moreover, the Commissioner concurs that the
Borough is barred from bringing its claim because it is a creature of the State and, thus, cannot
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challenge State action on equal protection grounds. 	See Williams, supra, (a municipality, created by
the 	state, 	may 	not 	invoke 	constitutional 	privileges 	or 	immunities 	against 	its 	creator) 	and
Newark, supra, (a municipality cannot challenge state action on Fourteenth Amendment equal
protection 	grounds). 	With 	respect 	to 	petitioners’ 	reliance 	on 	Camden, 	supra, 	and
North Haledon, supra, the Commissioner finds these cases are inapplicable to this case. Camden arose
from the County’s statutorily-authorized contractual obligation, not a constitutional claim against the
State or one of its agencies; and in North Haledon, a matter involving the withdrawal of a municipality
from a regional high school district, standing was conferred by N.J.S.A. 18A:13-54 and -55.
Moreover, it is noted that the Appellate Division in Stubaus concluded that the only
parties who possessed standing to challenge the CEIFA funding mechanism were the taxpayers
residing in the various school districts. 	Stubaus, supra, at 52. 	That court also set forth the limited
circumstances where litigants have been permitted to assert the constitutional rights of third parties,
i.e.., where third parties find it difficult to bring their own claims, where the third party’s rights are
likely to be diluted or adversely affected unless they are raised by a plaintiff holding a confidential
relationship with the third party and where a non-profit organization sues on behalf of its injured
members. 	Stubaus at 51. 	Even assuming, arguendo, that the Borough and the Mayor in his official
capacity are not precluded from raising a constitutional claim challenging CEIFA as noted above,
neither the Borough, nor the Mayor in his official capacity, satisfies these limited circumstances so as
to raise these claims on behalf of the Borough’s taxpayers.
Finally, with respect to the Mayor’s standing as an individual taxpayer to assert his own
constitutional rights and to seek invalidation of CEIFA, the Commissioner concurs that, while the
“liberal application of the standing rules is particularly appropriate in taxpayer suits” (Stubaus at 52,
citation omitted), in this particular matter, petitioner, in his individual capacity, has failed to allege
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actual harm or a substantial likelihood of same. 	Furthermore, the essence of such harm as he does
allege is not the harm against which the T&E clause protects. T&E mandates a system of educational
opportunity for children, not equitable tax burdens. 	“…[T]he T&E constitutional mandate does not
protect taxpayers.” (Id. at 56) The Commissioner, therefore, agrees with the ALJ that the mayor as an
individual citizen is precluded from maintaining this action based on the T&E constitutional provision.
Accordingly, as articulated above, the Commissioner adopts the Initial Decision
granting the Department’s motion and dismissing the within petition for the reasons set forth therein.
IT IS SO ORDERED.2
ACTING COMMISSIONER OF EDUCATION
Date of Decision: December 27, 2005
Date of Mailing: 	December 27, 2005
2 This decision may be appealed to the State Board of Education pursuant to N.J.S.A. 18A:6-27 et seq. and
N.J.A.C. 6A:4-1.1 et seq.
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