Am. Civil Liberties Union of N.J. v. Hendricks

• Decision Date: 02 May 2018
• Docket Number: 077885,A–22 September Term 2016
• Citation: 183 A.3d 931,233 N.J. 181
• Parties: AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, Unitarian Universalist Legislative Ministry of New Jersey, Gloria Schor Andersen, Penny Postel, and William Flynn, Appellants–Respondents, v. Rochelle HENDRICKS, Secretary of Higher Education for the State of New Jersey, in her official capacity; and Andrew P. Sidamon–Eristoff, State Treasurer, State of New Jersey, in his official capacity, Respondents–Appellants.
• Court: New Jersey Supreme Court

233 N.J. 181

183 A.3d 931

AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, Unitarian Universalist Legislative Ministry of New Jersey, Gloria Schor Andersen, Penny Postel, and William Flynn, Appellants–Respondents,

v.Rochelle HENDRICKS, Secretary of Higher Education for the State of New Jersey, in her official capacity; and Andrew P. Sidamon–Eristoff, State Treasurer, State of New Jersey, in his official capacity, Respondents–Appellants.

A–22 September Term 2016

077885

Supreme Court of New Jersey.

Argued October 23, 2017

Decided May 2, 2018

Stuart M. Feinblatt, Assistant Attorney General, argued the cause for appellant (Christopher S. Porrino, Attorney General, attorney; Stuart M. Feinblatt, of counsel and on the briefs; Jennifer J. McGruther, Trenton, on the briefs).

Edward L. Barocas argued the cause for respondents (American Civil Liberties Union of New Jersey Foundation; Barry, Corrado & Grassi; American Civil Liberties Union Program on Freedom of Religion and Belief; Americans United for Separation of Church and State; and American Civil Liberties Union—Women's Rights Project, attorneys; Edward L. Barocas, Jeanne M. LoCicero, Frank L. Corrado, Wildwood, Lenora Lapidus, on the brief, and Galen Sherwin of the New York bar, admitted pro hac vice, Daniel Mach of the District of Columbia bar, admitted pro hac vice, Alex J. Luchenitser of the District of Columbia bar, admitted pro hac vice, on the brief).

Ross A. Lewin, Princeton, argued the cause for amicus curiae Princeton Theological Seminary (Drinker Biddle & Reath, attorneys; Ross A. Lewin, of counsel and on the brief).

Avi Schick, New York, (Dentons US) of the New York bar, admitted pro hac vice, argued the cause for amicus curiae Beth Medrash Govoha (Dentons US, attorneys; Avi Schick, of counsel and on the brief, and Joel N. Bock, Short Hills, on the brief).

Gedalia M. Stern, New York, submitted a brief on behalf of amicus curiae the National Jewish Commission on Law and Public Affairs (Hafetz & Necheles; Lewin & Lewin; and Dennis Rapps, attorneys; Gedalia M. Stern, on the brief, and Nathan Lewin, Washington, of the District of Columbia bar, admitted pro hac vice, and Dennis Rapps of the New York bar, admitted pro hac vice, of counsel and on the brief).

PER CURIAM

This appeal involves a challenge to state action based on, among other grounds, the Religious Aid Clause of Article I, Paragraph 3 of the State Constitution, specifically its prohibition against the use of public funds "for the maintenance of any minister or ministry." The challenge arose following the State Secretary of Higher Education's (Secretary) determination to award grant monies to a yeshiva and to a theological seminary as part of a state program to subsidize facility and infrastructure projects for higher education institutions in New Jersey. The Appellate Division ended the challenge by focusing on the Article I, Paragraph 3 issue to the exclusion of all other state constitutional and statutory claims raised in the case. The appellate panel determined that prior case law concerning our Constitution's Religious Aid Clause required invalidation of the grants to the yeshiva and theological seminary. We granted the State's petition for certification seeking review of that determination.

The State maintains that the proper constitutional analysis in this matter turns on the use to which these higher education institutions will put the monies, not the nature of the institutions themselves. While plaintiffs do not dispute that the use of funds must be addressed, they emphasize the pervasively sectarian nature of the institutions and the avowed, and practically implemented, purpose of each to train individuals in theological and religious study, which plaintiffs contend profoundly affects the analysis in this matter.

This case comes before us as an appeal from final administrative action by the Secretary approving the grants. The present record is comprised essentially of the grant applications submitted by the institutions to the Secretary. The arguments of the parties reveal competing views of (1) the sectarian nature of these institutions of higher education; (2) whether, in the setting of the curriculum and training programs of these particular institutions, the grant funds will necessarily be used in the "maintenance of any minister or ministry"; and (3) the adequacy of promised restrictions or other curbs against sectarian use of the grant proceeds. Because those factual disputes require resolution before the Secretary can make a properly informed decision on the grant applications, we conclude that judicial review is premature.

A remand is necessary to allow for the development of a proper record, with fact-finding. Adversarial testing of the evidence in support of the parties' presentations is required here. Only based on such a record can the courts appropriately review the Secretary's decision to award, or not, grants to these institutions, in light of the constitutional arguments raised by plaintiffs. Because we conclude that an informed administrative decision could not have been made without the benefit of such a record, we remand this matter to the Secretary, and not to the trial court, in order that a contested case proceeding be conducted prior to the ultimate administrative decision of the Secretary concerning the challenged grants.

I.

A.

The background to this appeal is the "Building Our Future Bond Act" (the Act), which was enacted into law on August 7, 2012. L. 2012, c. 41. The Act authorized the State to effectuate the means to subsidize capital improvement projects for institutions of higher education. At the ensuing Election Day in November 2012, New Jersey voters approved a referendum authorizing the issuance of $750 million in general obligation bonds, the proceeds of which were to support the purposes of the Act.

The State proceeded to issue bonds and secure funds to be available to support higher education capital-improvement projects; at about the same time, the State solicited applications from higher education institutions interested in receiving such funding. Following the receipt and review of submitted applications, on April 29, 2013, the Governor announced that Secretary of Education Rochelle Hendricks had submitted to the Legislature for approval a list of 176 higher education capital construction projects to forty-six institutions of higher education, which included funding for research laboratories, computerized classrooms, and interconnected cyber networks. See L. 2012, c. 41, § 5(g); N.J.A.C. 9A:18–1.7. After sixty days elapsed, the grants were deemed approved by the Legislature. See N.J.A.C. 9A:18–1.7(d).

Of the forty-six higher education institutions that received funding, at least nine were religiously affiliated. Relevant for our purposes, two of those institutions were the Beth Medrash Govoha (the Yeshiva) and the Princeton Theological Seminary (the Seminary).

B.

From the administrative record submitted to the Appellate Division, we glean the following information. Largely, except where noted, the information comes from material gathered during the application process conducted by the Secretary, either in the form of representational responses to the State's application questions or in attachments submitted with the application.

The Yeshiva is located in Lakewood Township and serves more than 6,000 students. It is accredited by the Association of Advanced Rabbinical and Talmudic Schools. The Yeshiva describes Talmudic Studies as "a broad compendium of scholarship that draws on knowledge from a wide array of sources and disciplines, among which are references to religious texts such as the Bible." For purposes of elucidating the discussion, we add that a commonly accepted definition describes the Talmud as

the basic compendium of Jewish law and thought; its tractates mainly comprise the discussions collectively known as the Gemara, which elucidate the germinal statements of law (mishnayot) collectively known as the Mishnah; when unspecified refers to the Talmud Bavli, the edition developed in Babylonia, and edited at the end of the fifth century C.E.; the Talmud Yerushalmi is the edition compiled in the Land of Israel at the end of the fourth century C.E.

[Talmud, Chabad.org, https://www.chabad.org/search/keyword_cdo/kid/2700/jewish/Talmud-The.htm (last visited April 17, 2018).]

Courts have employed similar descriptions. See, e.g., State v. Freedom From Religion Found., 898 P.2d 1013, 1022 n.9 (Colo. 1995) ("The Talmud, an ‘all-embracing constitution of medieval Jewish life,’ is an extended, multivolume compilation of rabbinic teachings, including law, morality, and theology. The Hebrew word talmud means ‘study.’ The original writings, which were substantially supplemented over time, were ‘completed’ by the middle of the fifth century." (citing 14 The Encyclopedia of Religion 256–57 (Mircea Eliade et al. eds., 1987) ) ).

According to its mission statement, the Yeshiva is "an institution of Higher Education that specializes in advanced Talmudic scholarship. Its primary objective is to produce Talmudic scholars and to thereby provide firm, lifelong foundations for its students, graduates and their communities." The Yeshiva further represents that "[a]n integral part of [its] scholastic and professional aims is ethical and moral growth and maturity of the students, based on Jewish ethics and philosophy."

The Yeshiva offers four programs: a bachelor's degree in Talmudic Studies, a master's degree in Rabbinical and Talmudic Studies, and two certificates in graduate Talmudic Studies. The Yeshiva explained that fewer than five percent of students participate in a program that leads to ordination, and that the ordination program's religious instruction is "opt-in, not opt-out." The application record does not clarify whether the other courses constitute religious instruction, but does specify that "portions of the curriculum may utilize or reference texts with religious origin."

That...