NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2452-14T1

ROSALIE BACON, individually and on

behalf of G.P., Z.P., J.B., M.B., 

D.B., and Z.H.; JOSEPH BARUFFI,

individually and on behalf of J.B.;

ELIZABETH CULLEN, individually and 

on behalf of T.C.; EDIE RILEY, 

individually and on behalf of S.R.;

ARNETTA RIDGEWAY and CHRISTOPHER

GLASS, individually and on behalf of

J.G., F.G., and D.G.; COMMERCIAL,

HAMMONTON, LITTLE EGG HARBOR, MAURICE

RIVER, OCEAN, QUINTON, UPPER DEERFIELD,

WALLINGTON, BUENA REGIONAL, CLAYTON,

EGG HARBOR CITY, LAKEHURST, LAKEWOOD, 

LAWRENCE and WOODBINE SCHOOL DISTRICTS,

Plaintiffs-Appellants,

v.

NEW JERSEY STATE DEPARTMENT 

OF EDUCATION,

Defendant-Respondent.

____________________________________

Argued September 30, 2015 – Decided

Before Judges Alvarez, Haas and Manahan.

On appeal from Superior Court of New Jersey, 

Law Division, Mercer County, Docket No. L1989-14.

David G. Sciarra argued the cause for 

appellants (Education Law Center and Jacob & 

Chiarello, LLC, attorneys; Mr. Sciarra and 

Theresa S. Luhm, on the briefs).

APPROVED FOR PUBLICATION

November 6, 2015

APPELLATE DIVISION

November 6, 2015
2 A-2452-14T1

Donna Arons, Deputy Attorney General, argued 

the cause for respondent (John J. Hoffman, 

Acting Attorney General, attorney; Michelle L.

Miller, Assistant Attorney General, of 

counsel; Ms. Arons, on the brief).

The opinion of the court was delivered by

HAAS, J.A.D.

Plaintiffs, a group of fifteen school districts, and 

parents and children from those districts, appeal from the Law 

Division's December 15, 2014 order dismissing their complaint. 

Plaintiffs brought the complaint as a summary action "to enforce 

agency orders" under Rule 4:67-6(a)(2). Plaintiffs sought to 

compel defendant New Jersey State Department of Education (the 

Department) to provide "the funding and high quality preschool 

provided by the School Funding Reform Act of 2008 [SFRA], along 

with facilities improvements and other measures . . . ." 

The trial judge ruled that plaintiffs could not pursue the 

summary action under Rule 4:67-6(a)(2) because the districtspecific needs assessments which they sought to enforce did not 

require the Department to fully fund the districts under the 

SFRA or otherwise provide for specific relief and, therefore, 

there were no orders capable of being enforced under the rule. 

Having carefully reviewed the record and arguments on appeal, we 

affirm.
3 A-2452-14T1

I.

In December 1997, twenty school districts, known as the 

"Bacon districts,"1 filed a complaint in the Chancery Division 

against the Department, the Commissioner of the Department (the 

Commissioner), and several State officials. Bacon v. N.J. State 

Dep't of Educ., 398 N.J. Super. 600, 606 (App. Div. 2008), 

certif. denied, 210 N.J. 218 (2012). The districts were "rural 

and property-poor" and sought a declaratory judgment that the 

Comprehensive Educational Improvement and Financing Act of 1996, 

N.J.S.A. 18A:7F-1 to -42 (CEIFA), failed to provide a thorough 

and efficient education to their students, in violation of the 

New Jersey Constitution. Ibid. 

In their complaint, the Bacon districts sought State 

"funding equivalent to that provided to the State's richest 

school districts." Ibid. Essentially, the Bacon districts 

wanted to be funded in the same manner as their urban 

counterparts, the Abbott districts. Id. at 606-07. Under 

CEIFA, all districts with concentrations of impoverished 

students received State aid to address the unique educational 

difficulties that face such students. Id. at 605. All 

districts classified as Abbott districts received an additional 

 

1 The number of districts involved in this litigation has 

continuously varied. 
4 A-2452-14T1

type of aid, known as parity aid, which was "intended to support 

the per pupil expenditure level of the Abbott [d]istricts at the 

level of" New Jersey's wealthiest districts. Ibid. (citing 

Abbott v. Burke, 153 N.J. 480, 567 (1998) (Abbott V)). 

In February 1998, the parties entered into a consent order 

and jurisdiction was transferred to the Commissioner, who 

transmitted the matters to the Office of Administrative Law.

2 

Id. at 607. A bifurcated hearing was held before an 

Administrative Law Judge (ALJ). Ibid. At the first phase of 

the hearings, the ALJ determined that the districts had been 

using their "CEIFA funding appropriately." Id. at 608. 

During the second phase of the hearings, the districts 

needed to show "that educational deficiencies existed and the 

deficiencies could not be remedied, under current law and 

funding levels, by different programmatic and fiscal choices." 

Ibid. The ALJ determined that five districts needed additional 

funding; however, the Commissioner subsequently found that only 

one district needed additional funding and that CEIFA funding 

was sufficient with respect to the other districts. Ibid.

 

2 After the Commissioner and the Department filed motions to 

dismiss the petition for lack of standing, "the petition was 

amended to add several students attending some of the school 

districts and their parents." Id. at 607. 
5 A-2452-14T1

Eight districts ultimately appealed the Commissioner's 

decision to the State Board of Education (the Board). Id. at 

608-09. The Board issued its final decision on January 4, 2006. 

Id. at 609. Overall, the Board found that Bacon district 

students were "not being afforded a thorough and efficient 

education." Ibid. Additionally, the Board determined that "the 

children in [the Bacon districts] had 'special needs arising 

from the socioeconomic conditions in the districts[,]'" which 

were not being addressed by the available programming. Ibid. 

The Board "recognize[d] that CEIFA has provided these districts 

with more fiscal resources than ha[d] been available to them 

previously" and that "progress ha[d] been made under CEIFA to 

improve the quality of the education" in the Bacon districts. 

In spite of those gains, the Board still concluded that the 

students were being deprived of a thorough and efficient 

education. The Board also determined that CEIFA had created a 

fragmented funding system that failed students statewide, not 

just in the Abbott and Bacon districts.

After determining that there were constitutional violations 

in the Bacon districts, the Board examined the remedies that 

would best address the specific needs of those districts. 

Significantly, the Board rejected the idea

that merely providing the [Bacon] districts 

with the same fiscal resources that are 
6 A-2452-14T1

provided to the Abbott [d]istricts will 

ensure that the students of these districts 

are in fact afforded the educational 

opportunity to which they are entitled. 

While poor, the districts involved here are 

not identical to the districts that have 

been classified as Abbott [d]istricts. The 

very fact that they are not urban means that 

they face a unique set of circumstances that 

are different from those confronting the 

poor urban districts.

 

As an alternative to providing the Bacon districts with the same 

funding as Abbott districts, the Board directed the Commissioner 

to supervise the Department in "develop[ing] a design for a 

needs assessment to be performed in" the Bacon districts that 

would focus on the unique problems that confronted the 

individual districts.

In response, the Commissioner "recommended awaiting 

executive and legislative action on a new funding formula" then 

being considered by the Governor and the Legislature. Bacon, 

supra, 398 N.J. Super. at 613. The new funding formula was 

enacted in 2008 as the SFRA, N.J.S.A. 18A:7F-43 to -63. Ibid. 

Whereas CEIFA created a fragmented funding system, SFRA removed 

references to Abbott districts, id. at 613, n.10, and applied 

one uniform funding formula to all 618 school districts in New 

Jersey. Id. at 615. Under SFRA:

[T]he Department [would] calculate how much 

it costs to meet the constitutional mandate 

of affording every student in this [s]tate a 

thorough and efficient education. The State 
7 A-2452-14T1

then [would] base[] its share of the 

requirement by the wealth of a district; 

poorer districts [would] get a higher 

percentage of their educational budget from 

the State. 

[Ibid.] 

Before SFRA was enacted, the Bacon districts appealed the 

Board's 2006 decision to this court. Id. at 612. Plaintiffs 

requested that the court "grant them status comparable to Abbott 

districts and award[ing] them the same financial resources 

provided to their urban counterparts . . . ." Id. at 615. We 

declined to provide such relief. Instead, we deferred to the 

Board's approach of individualized needs assessments, referring 

to interim judicial funding as "a last resort." Id. at 616-17. 

We felt it particularly appropriate to avoid a judiciallycompelled funding remedy given the recent enactment of SFRA. 

Id. at 617. As a result, we "direct[ed] the Commissioner to 

comply with the Board's final decision and proceed forthwith to 

design and perform a needs assessment of each of the Bacon 

districts . . . and . . . to further determine whether . . . 

[SFRA's] remedial measures afford students in the Bacon 

districts" a thorough and efficient education. Id. at 618.

In compliance with our directive, the Department designed 

and implemented a comprehensive, multi-phased needs assessment 

in 2008. The needs assessments culminated in a report issued by 
8 A-2452-14T1

the Commissioner on September 14, 2009. The report consisted of 

sixteen individualized assessments of each of the Bacon 

districts that summarized the results of site visits, evaluated 

the adequacy of the facilities, evaluated the effect of SFRA on 

the district's funding, and provided conclusions and 

recommendations for each district. 

As directed by the Board, the needs assessments focused on 

the unique issues that affected each individual district at that 

time. With respect to SFRA, the assessments detailed the amount 

of aid that each district actually received for fiscal year 

(FY)08-09, the anticipated level of funding for FY09-10, and how 

the districts intended to use the funding. Notably, the needs 

assessment lacked a global statement about all of the Bacon 

districts or whether fully funding SFRA would provide the Bacon 

district students with a thorough and efficient education. 

Pursuant to Rule 2:4-1(b) and Bacon, supra, 398 N.J. Super.

at 619, plaintiffs could have appealed the needs assessments. 

However, no appeal was filed. 

The State reduced SFRA funding for the 2011 fiscal year. 

Abbott v. Burke, 206 N.J. 332, 344-46 (2011) (Abbott XXI). On 

September 2, 2011, the districts that had appealed the Board's 

decision to this court filed a motion to enforce litigants' 

rights pursuant to Rule 1:10-3, seeking an order directing that 
9 A-2452-14T1

the Bacon districts receive full funding under SFRA. In a 

January 12, 2012 order, we denied the motion because "[t]he 

specific relief requested on this motion to enforce litigant's 

rights . . . [was] neither encompassed nor contemplated in our 

[previous] decision . . . ." We further stated:

To the extent movants' instant application 

seeks redress from the September 14, 2009 

final administrative decisions of the 

Commissioner . . . as inconsistent with, or 

violative of, the Bacon holding, their 

recourse was a direct appeal therefrom 

. . . . To the extent movants seek[] to 

enforce, or compel compliance with, any 

aspect of the September 14, 2009 

administrative agency determinations, their 

recourse is by way of summary proceeding 

pursuant to Rule 4:67-6.[3]

Plaintiffs took no further action until approximately 

September 8, 2014 when fifteen of the original twenty Bacon 

districts filed a verified complaint and order to show cause 

under Rule 4:67-6 in the Law Division. Plaintiffs framed the 

complaint as:

an action to enforce final determinations by 

[the Department] . . . that the funding and 

high quality preschool provided by [SFRA], 

along with facilities improvements and other 

measures, will afford students in [Bacon]

districts a thorough and efficient education 

. . . remediating the constitutional 

violation found by [the Board] and upheld by 

 

3 On May 7, 2012, the Supreme Court denied plaintiffs' petition 

for certification from this order. Bacon v. N.J. State Dep't of 

Educ., 210 N.J. 218 (2012).
10 A-2452-14T1

the Superior Court, Appellate Division 

. . . .

The relief sought by plaintiffs was broad. Plaintiffs 

requested an order directing the Department to (1) calculate the 

aid that would be provided to the Bacon districts under SFRA for 

the 2014-15 school year and subsequent years, send those 

calculations to the Legislature, "and seek supplemental 

appropriations as may be necessary to ensure the provision of 

necessary funding"; (2) calculate the preschool aid that the 

Bacon districts would receive under SFRA to allow them "to 

implement high quality preschool for all three- and four-year 

olds . . . no later than the 2019-20 school year"; (3) 

"[d]evelop and implement district-specific plans for facilities 

improvements and financing as may be necessary and consistent 

with the Educational Facilities Construction and Financing Act 

(EFCFA), N.J.S.A. 18A:7G-1 et seq., commencing in the 2015-16 

school year"; (4) "[u]ndertake such other district-specific 

remedial measures as identified in the 2009 assessments or as 

otherwise necessary to ensure the effective and efficient use of 

funds in the districts' budgets;" (5) "[a]ward attorneys' fees 

to [plaintiffs] pursuant to N.J.S.A. 10:6-2[(f)]"; and (6) grant 

plaintiffs "[s]uch other relief as the [c]ourt may deem 

appropriate and necessary to ensure remediation of the 

constitutional violation found in this litigation."
11 A-2452-14T1

On November 7, 2014, the Department filed a motion to 

dismiss the complaint for failure to state a claim. The trial 

judge granted the Department's motion on December 15, 2014.

In her oral decision, the judge focused on whether 

plaintiffs could use a Rule 4:67-6 summary proceeding to obtain 

their requested relief. She characterized plaintiffs' requested 

relief as "sweeping," and expressed concern about the limited 

record in this case compared to the records before the Supreme 

Court in the Abbott cases, specifically Abbott XXI. 

With respect to the procedural issue, the judge noted that 

Rule 4:67-6 is a "very narrow rule" that was "never intended to 

supplant other jurisdictional exercises by [S]tate agencies." 

Specifically, the judge highlighted that "there was never any 

finding as to what level of funding under SFRA was essential to 

provide a [thorough and efficient education] in [the Bacon] 

districts" in the 2009 needs assessments. The judge further 

noted that the needs assessments lacked "directory language," an 

"omnibus order," or a global conclusion "that full funding of 

SFRA is necessary for a thorough and efficient education in each 

one of the Bacon districts." As a result, the judge determined 

that a summary proceeding under Rule 4:67-6 was not an 

appropriate vehicle to obtain plaintiffs' requested relief and 
12 A-2452-14T1

granted the Department's motion to dismiss. This appeal 

followed.

II.

We employ a plenary standard of review over a trial court's 

decision to grant a Rule 4:6-2(e) motion to dismiss for failure 

to state a claim upon which relief can be granted. Rezem Family 

Associates, L.P. v. Borough of Millstone, 423 N.J. Super. 103, 

114 (App. Div.), certif. denied, 208 N.J. 366 (2011). The 

narrow issue presented in this case is whether plaintiffs

properly brought this action under Rule 4:67-6(a)(2). For the 

following reasons, we conclude they did not and that therefore 

the trial judge properly dismissed plaintiffs' complaint.

Under Rule 4:67-6, an administrative agency or a non-agency 

party can institute a summary proceeding in Superior Court to 

enforce an agency order. If the plaintiff is a non-agency 

party, then the rule applies to "all such enforcement actions 

brought by a party to the administrative proceeding in whose 

favor a written order or determination was entered affording 

that party specific relief." R. 4:67-6(a)(2). (emphasis added). 

Rule 4:67-6 exists "to provide judicial remedies in aid of 

agency orders where necessary." In re A-1 Jersey Moving & 

Storage, Inc., 309 N.J. Super. 33, 40 (App. Div. 1998). 

Additionally, parties cannot challenge the validity of an 
13 A-2452-14T1

administrative order collaterally in a Rule 4:67-6 proceeding. 

State Dep't of Envtl. Prot. v. Mazza & Sons, Inc., 406 N.J. 

Super. 13, 23 (App. Div. 2009).

We have observed that Rule 4:67-6 enforcement actions are 

analogous to "a motion for enforcement of litigant's rights 

under Rule 1:10-3 in a judicial proceeding." Mazza, supra, 406 

N.J. Super. at 29 (citing State Farm Mut. Auto. Ins. Co. v. 

State of N.J., Dep't of Pub. Advocate, 118 N.J. 336, 344 

(1990)). "The scope of relief in a motion in aid of litigants' 

rights is limited to remediation of the violation of a court 

order." Abbott XXI, supra, 206 N.J. at 371. Because Rule 4:67-

6 is the administrative counterpart to Rule 1:10-3, the scope of 

relief that can be afforded to a party instituting a summary 

enforcement action is similarly limited. 

To be successful in pursuing a summary action under Rule

6:67-6, a litigant must show that there is a "specific and 

unequivocal" order in place. Abbott v. Burke, 170 N.J. 537, 565 

(2002) (Abbott VII) (LaVecchia, J., concurring in part and 

dissenting in part). The order must afford the enforcing party 

"specific relief." R. 4:67-6(a)(2). The litigant must also 

show that the State agency "has failed to comply with the order 

and that the court's assistance is necessary to secure 

compliance." Mazza, supra, 406 N.J. Super. at 29.
14 A-2452-14T1

Applying these principles, we conclude that plaintiffs' 

complaint failed to state a claim upon which relief could be 

granted in a summary proceeding under Rule 4:67-6(a)(2). No 

"written order or determination" was entered in their favor that 

afforded them the "specific relief" they sought in their 

complaint. 

In their complaint, plaintiffs described the individual 

September 14, 2009 needs assessments as "final determinations" 

by the Department

that the funding and high quality preschool 

provided by [SFRA], along with facilities 

improvements and other measures, will afford 

students in [the Bacon] districts a thorough 

and efficient education . . . thereby 

remediating the constitutional violation 

found by [the Board] and upheld by the 

Superior Court, Appellate Division . . . .

However, the structure of the needs assessments themselves belie 

plaintiffs' arguments. The needs assessments consist of sixteen 

distinct reports that focus on sixteen individual districts. 

There is no overall report that draws conclusions about the 

state of the Bacon districts as a group. To the contrary, as 

the Board directed, the needs assessments attempt to identify 

the unique issues that each district faced back in 2009. 

The following examples illustrate the point. In the 

Lawrence School District Needs Assessment, the Department

focused on the issues presented by that district's small size 
15 A-2452-14T1

and recommended that the district pursue regionalization. On 

the other hand, the Lakewood School District Needs Assessment 

addressed the effect that the district's policy of courtesy 

busing non-public school students had on its finances and 

recommended that the policy be reconsidered. In the Buena 

Regional Needs Assessment, the Department stated that the 

district "must address the high personnel costs and loss of 

productivity that results from teachers spending so little time 

on instructional activities . . . ." The needs assessments for 

the remaining districts set forth other district-specific 

recommendations.

In spite of the fact that the sixteen needs assessments 

sought individualized solutions to each district's unique 

issues, plaintiffs requested sweeping, identical relief for all 

of the Bacon districts. It is undisputed that the needs 

assessments evaluated the effect of SFRA. However, plaintiffs 

mischaracterize the import of those recommendations. In some of 

the assessments, the Department identified that SFRA funding 

would have a positive effect on the district. For example, in 

the Lawrence School District Assessment, the Department noted 

that:

although the SFRA and complementary 

legislation . . . provide the tools that 

will permit [the district] to improve 

educational opportunities for its students 
16 A-2452-14T1

and address its identified needs, the 

extremely small size of the school district 

poses significant challenges . . . . 

Regionalization . . . will be critical to 

addressing those challenges in this

district.

On appeal, plaintiffs attempt to extrapolate this statement 

to apply to all the Bacon districts. However, the Department

did not reach similar conclusions for all of the Bacon 

districts. Thus, there was no "specific order" that could be 

enforced for all of the Bacon districts.

In the needs assessments, the Department's final 

conclusions can be roughly grouped into three general 

categories: (1) SFRA funding will continue to improve 

educational opportunities; (2) SFRA funding will continue to 

improve educational opportunities but regionalization may be 

necessary; or (3) the district needs to better utilize available 

funds. The recommendations of the needs assessments follow the 

Board's original conclusion that the Bacon districts have 

different needs and will ultimately require different solutions 

than the Abbott districts. 

Significantly, none of the needs assessments concluded that 

fully funding the SFRA is necessary to ensure that students in 

the Bacon districts receive a thorough and efficient education. 

The needs assessments do not require the Department or the 

Legislature to fully fund the districts under SFRA, or institute 
17 A-2452-14T1

specific pre-school programs or building projects in the 

districts.

Plaintiffs argue that the needs assessments are enforceable 

because in Bacon, supra, 398 N.J. Super. at 618, we instructed 

the Department "to further determine whether, in light of the 

proven educational deficits already found by the Board, the 

[SFRA's] remedial measures afford students in the Bacon 

districts the thorough and efficient education to which they are 

constitutionally entitled." According to plaintiffs, because 

the Department was instructed on remand to use the needs 

assessments to determine whether SFRA would remediate the 

constitutional violation, the conclusions and recommendations in 

the needs assessments are enforceable as an agency order. 

However, as noted above, the needs assessments lack clear 

findings about the remedial effect of the SFRA on the 

constitutional violations that the Board originally identified. 

If the Department failed to comply with our directive in Bacon, 

supra, that the Commissioner determine whether SFRA provided the 

Bacon districts with a thorough and efficient education, 

plaintiffs' appropriate recourse was an appeal of the needs 

assessments. While plaintiffs assert that "[i]n plain and 

unequivocal language, [the Department] determined that the SFRA 

provides adequate funding . . . to ensure the Bacon students 
18 A-2452-14T1

[receive] a thorough and efficient education," that language is 

not found in the needs assessments. The plain language of the 

needs assessments cannot be construed as an administrative order 

in plaintiffs' favor entitling them to full SFRA funding or any 

of the broad relief sought in their complaint. 

Furthermore, the needs assessments contain no directives. 

As noted by the trial judge, the needs assessments lack an 

"omnibus order." In a Rule 4:67-6 proceeding, the trial court's 

powers are strictly limited to enforcement of an order. See

Mazza, supra 406 N.J. Super. at 23 (trial court cannot rule on 

the validity of an agency order in a Rule 4:67-6 proceeding). 

Without any directives or an omnibus order, there was nothing 

for the trial court to enforce and plaintiffs' complaint was 

therefore properly dismissed.

Plaintiffs make two additional arguments. First, they 

assert their complaint was properly filed under Rule 4:67-6 

because, in our January 12, 2012 order, we "instuct[ed]" them to 

proceed in this fashion. We disagree. Contrary to plaintiffs' 

assertion, the January 12, 2012 order was not an "instruction" 

by this court to file a summary action under Rule 4:67-6, nor a 

guarantee that any such action, if pursued, would be successful. 

Instead, we simply made clear that plaintiffs' motion for an 

order in aid of litigants' rights lacked merit. 
19 A-2452-14T1

Plaintiffs also argue for the first time in their reply 

brief that we should exercise our original jurisdiction in this 

matter pursuant to Rule 2:10-5; declare that the Department has 

violated New Jersey's Constitution by failing to ensure that 

plaintiffs all receive full SFRA funding; and implement specific 

remedies concerning future funding. We again disagree.

We generally decline to consider arguments raised for the 

first time in a reply brief. L.J. Zucca, Inc. v. Allen Bros. 

Wholesale Distribs. Inc., 434 N.J. Super. 60, 87 (App. Div. 

2014) (citing Borough of Berlin v. Remington & Vernick Eng'gs, 

337 N.J. Super. 590, 596 (App. Div.), certif. denied, 168 N.J.

294 (2001)), certif. denied, 218 N.J. 273 (2014). By failing to 

raise their original jurisdiction argument in their initial 

brief, plaintiffs have waived this contention.

Moreover, we exercise our original factfinding authority 

under Rule 2:10-5 only "with great frugality and in none but a 

case free of doubt." Tomaino v. Burman, 364 N.J. Super. 224, 

234-35 (App. Div. 2003) (quoting In re Boardwalk Regency Corp. 

Casino License Application, 180 N.J. Super. 324, 334 (App. Div. 

1981), modified on other grounds, 90 N.J. 361 (1982)), (internal 

quotation marks omitted), certif. denied, 179 N.J. 310 (2004). 

This is not such a case. The record is wholly inadequate to 

allow us to exercise our original fact-finding authority to 
20 A-2452-14T1

review plaintiffs' claim that they are entitled to specific 

levels of funding under SFRA.

Affirmed.