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December 3, 1980

David Earl HUMPHREYS, Plaintiff,
Fred G. BURKE, individually and in his capacity as Commissioner of Education of the State of New Jersey; Raymond J. Zane, individually and in his capacity as a member of the Senate of the State of New Jersey; Joseph F. Zach, an individual; August E. Thomas, in his capacity as an Administrative Law Judge of the State of New Jersey; the Office of Administrative Law of The State of New Jersey, an Agency within the Executive Branch of the government of the State of New Jersey; and the Department of Education of The State of New Jersey, an Agency within the Executive Branch of the government of the State of New Jersey, Defendants

The opinion of the court was delivered by: GERRY

Before the court is plaintiff's prayer for preliminary and permanent injunction restraining the defendants from proceeding to hearing in a case filed with the Commissioner of Education entitled In the Matter of Tenure Hearing of David Earl Humphreys, Docket No. 397-11/76, OAL Docket No. EDU 700-80. The plaintiff also seeks to transfer jurisdiction of the proceeding to this court for hearing and adjudication. Finally, plaintiff seeks damages for alleged violations of his constitutional rights and compensation for costs and attorney's fees expended in the protection of his civil rights. In support of his prayer for relief, plaintiff alleges that the defendants' conduct during the course of administrative proceedings has exhibited prejudice, bias and improper influence, and has so tainted the administrative proceedings as to deny the plaintiff due process. In addition, plaintiff claims that he has already suffered loss of due process because defendant Burke issued a decision on the merits of his case at a time when he had only procedural motions before him.

This dispute arose in November of 1976. On November 13, 1976, the plaintiff Humphreys, a tenured teacher in the Pennsville School System, was arrested and charged with possession of controlled dangerous substances (apparently 25 grams of marijuana and 5 grams of hashish). By resolution dated November 13, 1976, the Pennsville Board of Education suspended the plaintiff without pay from the performance of his duties pursuant to N.J.S.A. 18A:6-11. Charges of conduct unbecoming a teacher were certified by the Board to the Commissioner of Education on November 23, 1976. On December 27, 1976, plaintiff brought a motion to dismiss the pending proceedings. The Commissioner denied the motion on June 11, 1977, but held the matter in abeyance pending a determination by a court of proper jurisdiction of the criminal charges.

 In May of 1978, the plaintiff entered a plea of guilty to the indictment, which charged him with possession of a controlled dangerous substance, and sentence was imposed on June 26, 1978.

 In March of 1978, the plaintiff had filed as part of the tenure proceedings a motion requesting reconsideration of a prior determination denying him 120 days' salary. In ruling on plaintiff's request, the Commissioner found N.J.S.A. 2A:135-9 applicable. The statute provides that any person holding a position under the government of any political subdivision "who pleads guilty ... to an indictment ... charging him with the commission of a misdemeanor ... touching the administration of his ... position or which involves moral turpitude, shall forfeit his ... position and cease to hold it from the date of ... entry of plea." Because of plaintiff's intervening guilty plea and sentence, the Commissioner held that N.J.S.A. 2A:135-9 mandated dismissal of the plaintiff from his tenured position. This determination was reversed by the State Board of Education on the ground that, even if plaintiff's entry of a guilty plea triggered N.J.S.A. 2A:135-9, the Teacher Tenure Law and/or due process required that plaintiff be given a hearing to tell his side of the story. The State Board remanded the case to the Commissioner for a plenary hearing.

 Subsequently, plaintiff's attorney reviewed the sealed file which contains the alleged prejudicial correspondence and alleged evidence of communications between defendants Burke, Zane and Zach pertaining to the merits of plaintiff's case (see plaintiff's complaint pages 8-11). Plaintiff sought to copy these documents, and when Administrative Law Judge Thomas asked him to bring a formal motion, plaintiff's counsel protested that documents would be destroyed. However, plaintiff's counsel has never brought a formal motion.

 In early September 1980, plaintiff's attorney sought to have the hearing postponed because of a conflicting PERC hearing which had been scheduled by mistake for the same day. Administrative Law Judge Thomas suggested that he seek the agreement of his adversary. Because the School Board is paying plaintiff's salary for each day until this dispute is resolved, plaintiff's counsel admitted that the Board would not agree to a postponement unless plaintiff agreed to forego payment of salary (which plaintiff refused).

 On September 16, 1980, plaintiff herein filed an Order to Show Cause to enjoin the September 29, 1980 hearing.

 Plaintiff invokes the jurisdiction of this court under § 1343(3) and (4), under § 1331 and under § 1332. Plaintiff claims that his suit is authorized by § 1983, since he seeks to redress a deprivation of constitutional rights. He also avers that this action arises under the 5th and 14th Amendments. While plaintiff asserts diversity jurisdiction, he does not specifically set forth a state law cause of action (presumably plaintiff's state law claim consists of whatever rights he is entitled to under the tenure law, should this court transfer jurisdiction of that proceeding here; in addition, plaintiff claims damages for injury to reputation and emotional distress caused him by the actions of defendants Burke, Zane and Zach).

 (1) Jurisdiction

 Before we reach the merits of plaintiff's claim for injunctive relief, we must ascertain whether the claim is properly within the jurisdiction of this court. Plaintiff asserts two bases for "arising under" jurisdiction-§ 1331 and § 1343. Plaintiff states that:

Defendants have deprived and will continue to deprive plaintiff of a fair hearing before a fair and impartial adjudicator as required by the Tenure Employees Hearing Law, N.J.S.A. 18A:6-10, et seq., in connection with the tenure charges lodged against him. Therefore, defendants have deprived and will continue to deprive plaintiff of property without due process of law, in violation of rights guaranteed by the Fifth and Fourteenth Amendments to the Constitution. (Plaintiff's Complaint P 30, p. 12) (emphasis added).

 If plaintiff has been deprived of due process, we would have jurisdiction under § 1343 or under § 1331. See Bell v. Hood, 327 U.S. 678, 684, 66 S. Ct. 773, 776, 90 L. Ed. 939 (1946); Chicago, B & Q R. Co. v. Chicago, 166 U.S. 226, 17 S. Ct. 581, 41 L. Ed. 979 (1897). See also Wright & Miller, Federal Practice and Procedure § 3573 at 484. However, where the facts alleged by plaintiff do not establish an existing deprivation of due process, there is no basis upon which the court can assert jurisdiction. Hagans v. Lavine, 415 U.S. 528, 536-37, 94 S. Ct. 1372, 1378-79, 39 L. Ed. 2d 577 (1974). See also Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S. Ct. 1905, 60 L. Ed. 2d 508 (1979); Moor v. County of Alameda, 411 U.S. 693, 93 S. Ct. 1785, 36 L. Ed. 2d 596 (1973). "(T)he claim of a federal question must have some foundation of plausibility ... in order to give jurisdiction." Montana Catholic Missions v. Missoula County, 200 U.S. 118, 130, 26 S. Ct. 197, 201, 50 L. Ed. 398 (1906). In addition, § 1343(3) by its express terms requires that there be a deprivation of a constitutional right before a cause of action thereunder would arise.

 Plaintiff has claimed that the receipt of correspondence from and discussions with defendant Zane, the August 1978 decision dismissing plaintiff from his teaching position and an apparent awareness by individuals in the Commissioner's Office of the "concerns of the citizens of the community" have deprived him of a fair hearing. While we agree that the dismissal of a teacher without a hearing might, in the appropriate circumstances, rise to the level of a due process violation, we are not herein presented with such a situation. Although the August 1978 decision did order dismissal of plaintiff, this determination was reversed by the State Board precisely to insure plaintiff had an opportunity to be heard. Therefore, there is no evidence that plaintiff has suffered a due process deprivation. While plaintiff has speculated that the ...

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