For affirmance -- Chief Justice Hughes and Justices Jacobs, Hall, Mountain, Sullivan, Pashman and Clifford. For reversal -- None.
The Appellate Division, in a comprehensive opinion reported at 125 N.J. Super. 131 (1973), reversed and remanded to the Commissioner of Education for further proceedings. We agree that the matter should go back to the Commissioner for a plenary hearing and therefore affirm.
The plaintiff Marilyn Winston was a South Plainfield schoolteacher who failed to receive her fourth annual contract and was thereby denied tenure. She unsuccessfully pursued the internal grievance procedures available to her under the collective agreement between the plaintiff Education Association and the respondent Board of Education and ultimately filed a petition with the State Commissioner of Education under N.J.S.A. 18A:6-9. The Education Association joined her as a petitioner and they alleged that the determination not to renew her contract was made in retaliation for her exercise of the right to free speech and was
therefore constitutionally impermissible. See Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2 d 811 (1968); Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2 d 570 (1972); Van Alstyne, "The Constitutional Rights of Teachers and Professors," 1970 Duke L.J. 841.
The petition, which was duly verified, set forth specifics in support of her assertion that she was denied her rights under the federal constitution. Thus, as the Appellate Division summarized it (125 N.J. Super. at 144), she set forth instances and details indicating that she had "questioned policy decisions, made suggestions and recommendations, sought information or reasons for certain administrative decisions, expressed criticisms among teachers concerning certain administrative directives, and the like." She also set forth certain remarks which appeared in her supervisor's evaluation of her in support of her position that she was not retained because of public remarks by her which she asserts were constitutionally protected.
The Board of Education moved before the Commissioner for a dismissal of the petition. The motion was heard by a hearing examiner who submitted his report to the Commissioner. Thereafter the Commissioner handed down his decision which dismissed the petition. He expressed the view that the Association had no standing but recognized that Mrs. Winston did have standing. He further recognized that it would be constitutionally impermissible to refuse to reengage a nontenured teacher in retaliation for the exercise of her right to free speech but pointed out that a petition so grounded must contain more than mere "naked allegations" to withstand a motion to dismiss, citing his earlier decision in Ruch v. Board of Education of Greater Egg Harbor Regional High School District, Atlantic County, 1968 S.L.D. 7.
The Commissioner's dismissal of the petition was appealed to the State Board of Education which, after receiving the report of its Law Committee, affirmed the Commissioner's
decision on the basis of his opinion. On the plaintiffs' appeal to the Appellate Division they advanced various contentions which were dealt with fully in its opinion under three points. We agree with its holding under the first point that the plaintiffs should have been afforded timely opportunity to examine not only the report of the Commissioner's hearing examiner but also the report of the Law Committee of the State Board. 125 N.J. Super. at 137-140; In re Masiello, 25 N.J. 590, 605 (1958); Quinlan v. Bd. of Ed. of North Bergen Tp., 73 N.J. Super. 40, 53 (App. Div. 1962); cf. Fifth St. Pier Corp. v. Hoboken, 22 N.J. 326, 337-339 (1956).
We also agree with the Appellate Division's holding under the second point that, in view of the special circumstances presented, the Education Association should have been permitted to continue as a copetitioner along with Mrs. Winston. 125 N.J. Super. at 140-142. Practically the matter is of little moment since Mrs. Winston and the Education Association have at all times been represented by the same attorney who has properly confined his contentions to those fully available to Mrs. Winston. The Attorney General in his brief on behalf of the State Board seems concerned that the Appellate Division's holding on the standing issue might be construed to permit the Education Association to go beyond the issues available to Mrs. Winston. We find no basis for his concern.
The third and final point dealt with by the Appellate Division related to the Commissioner's position that the petition contained nothing more than "naked allegations" and and was therefore subject to dismissal on its face. The Appellate Division found much beyond "bare assertions" in the verified petition and enough to call for the taking of testimony before the Commissioner. 125 N.J. Super. at 144-145. We agree and consider the Appellate Division's approach to have been compatible with settled ...