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March 2, 1981

Portia WILLIAMS, Plaintiff,
The RED BANK BOARD OF EDUCATION, Joan D. Abrams, Individually and as Superintendent of the Red Bank School District, Catherine Cadman, Individually and in her official capacity, Richard T. Doherty, Individually and in his official capacity, Michael S. Ellegood, Individually and in his official capacity, Frances H. Kingle, Individually and in her official capacity, Ronald D. Sachs, Individually and in his official capacity, Marcelle Seruby, Individually and in her official capacity, Dorothy Setaro, Individually and in her official capacity, Stephen M. Popper, Individually and in his official capacity, Fred G. Burke, Commissioner of Education of the State of New Jersey, in his official capacity, Defendants

The opinion of the court was delivered by: DEBEVOISE

This opinion concerns plaintiff's motion for an injunction staying state administrative proceedings pending resolution of an appeal from a judgment of this Court dismissing plaintiff's complaint on abstention grounds.

Plaintiff Portia Williams, a tenured elementary school teacher, brought suit under 42 U.S.C. § 1983 against the Red Bank, New Jersey Board of Education (the Board), various Red Bank School District officials and the Commissioner of Education of the State of New Jersey charging that the Board had instituted tenure termination proceedings against her in retaliation for her exercise of protected First Amendment rights. As relief plaintiff sought a declaratory judgment that the Board's prosecution of the charges constituted a violation of the First Amendment, an injunction against further state proceedings, an order that the Board withdraw all reference to the charges from her records, and compensatory and punitive damages. In an opinion dated January 5, 1981, and reported at 502 F. Supp. 1366, this court abstained under the doctrine of Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971) in deference to the pending state administrative proceedings.

 The tenure termination proceedings in this case are governed by N.J.S.A. 18A:6-1 et seq. ("Provisions Relating to Educational Institutions and System"), N.J.S.A. 52:14B-1 et seq. ("Administrative Practice and Procedure") and N.J.S.A. 52:14F-1 et seq. ("Office of Administrative Law"). Written charges were preferred against plaintiff in May, 1980 by defendant Joan D. Abrams, superintendent of the Red Bank School District and filed, along with a written statement of evidence, with the Red Bank Board of Education. See N.J.S.A. 18A:6-11. The Board provided plaintiff with notice of the charges and the evidence and plaintiff filed a statement of position on May 27, 1980. The Board then considered the charges and, by resolution of June 3, 1980, determined that probable cause existed to credit the evidence in support of the charges and that the charges warranted dismissal or reduction of salary. In accordance with N.J.S.A. 18A:6-11, the charges were certified and forwarded to the Commissioner for a hearing pursuant to N.J.S.A. 18A:6-16. The Board also voted to suspend plaintiff with pay pending a final determination by the Commissioner. The Commissioner has assigned the tenure charges to the Office of Administrative Law for a plenary hearing and a recommended report and decision. See N.J.S.A. 52:14B-9, 10 and N.J.S.A. 52:14F-5(n). The Administrative Law Judge has scheduled a hearing for March 16, 17, 18, 19 and 20, 1981.

When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.

 Appellate Rule 8(a) requires that application "for an order suspending, modifying, restoring or granting an injunction during the pendency of an appeal must ordinarily be made in the first instance to the district court." The court clearly has jurisdiction to grant the relief requested. Ray Marshall v. Berwick Forge and Fabricating Co., 474 F. Supp. 104, 108 (M.D.Pa.1979).

 The factors to be considered in determining whether to grant an injunction pending appeal are substantially the same as those governing the issuance of preliminary injunctions prior to trial on the merits. The moving party must show (1) some likelihood of success on appeal, (2) that he will be irreparably injured unless the injunction is granted, (3) that other interested persons will not be substantially harmed by an injunction, and (4) that the public interest is not disserved by an injunction. Walker v. O'Bannon, 487 F. Supp. 1151 (W.D.Pa.1980); St. Claire v. Cuyler, 482 F. Supp. 257 (E.D.Pa.1979); Rennie v. Klein, 481 F. Supp. 552 (D.N.J.1979); cf. Constructors Association of Western Pennsylvania v. Kreps, 573 F.2d 811 (3d Cir. 1978).

 Plaintiff and defendants differ as to the appropriate standard to apply in determining whether a sufficient likelihood of success on appeal is made out. Defendants argue that the moving party must demonstrate a "substantial likelihood" of prevailing on the appeal in addition to satisfying the remaining three factors. See, e.g., U. S. v. Manchel, Lundy and Lessin, 477 F. Supp. 326 (E.D.Pa.1979). Plaintiff points out the incongruity of asking a district judge to make a determination that his earlier decision will probably be reversed and argues for a more flexible standard. It is plaintiff's position that a lesser showing of likelihood of success on appeal should be required where the balance of hardships tips strongly in favor of the moving party. Thus, the Court of Appeals for the District of Columbia has held that "an order maintaining the status quo is appropriate when a serious legal question is presented, when little if any harm will befall other interested parties or the public and when denial of the order would inflict irreparable injury on the movant ... whether or not movant has shown a mathematical probability of success." Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 559 F.2d 841, 844 (D.C.Cir.1977); see also Walker v. O'Bannon, supra at 1161. The Third Circuit has recently held that a preliminary injunction might be appropriate "where factors of irreparable harm, interests of third parties and public considerations strongly favor the moving party ... "even though plaintiffs did not demonstrate as strong a likelihood of ultimate success as would generally be required.' " Constructors Association of Western Pennsylvania v. Kreps, supra at 815. The same reasoning applies to the issuance of an injunction pursuant to Rule 62(c) and will be applied here.

 In light of the Third Circuit's very recent decision in Garden State Bar Association v. Middlesex County Ethics Committee, 643 F.2d 119 (3d Cir., 1981), decided after the decision on the merits in the present case, there can be no question that plaintiff's appeal presents serious and difficult legal issues on which there is a substantial possibility that she will prevail. In Garden State, a New Jersey attorney against whom state bar disciplinary charges had been lodged for making comments to the press during the jury selection phase of a criminal trial brought suit in federal court to enjoin the disciplinary proceedings on First Amendment grounds. The district court abstained under Younger v. Harris in deference to the pending state proceedings and the Court of Appeals, with a majority opinion, a concurring opinion, and a dissent, reversed. The opinion of the Court of Appeals clearly indicates that the question whether a federal court should defer to ongoing state administrative proceedings, not having been resolved by the United States Supreme Court, is one which will be subjected to close scrutiny in future cases.

 Judge Sloviter, writing for the majority in Garden State, began her analysis by noting that "all of the Supreme Court cases which have held that Younger abstention was warranted were cases in which the state proceedings sought to be enjoined were judicial proceedings, not administrative proceedings". At 127. She acknowledged that the Supreme Court, in Gibson v. Berryhill, 411 U.S. 564, 93 S. Ct. 1689, 36 L. Ed. 2d 488 (1973), stated that "administrative proceedings looking toward the revocation of a license to practice medicine may in proper circumstances command the respect due court proceedings". She found it unnecessary, however, to "attempt to delineate the "proper circumstances' in which deference may be due state proceedings, because such deference would, in any event, only be accorded to administrative adjudicative proceedings". At 128. The disciplinary proceedings which were pending at the time plaintiff filed his federal suit, she held, "cannot be classified as adjudicatory because they are limited to fact-finding, they are conducted by committees including members of no special legal competence, and they cannot result in the imposition of any discipline." Consequently, she concluded, the district court improperly abstained from exercising its jurisdiction over the action. Judge Adams, concurring, emphasized that whether or not the state bar disciplinary proceedings could be divided into discrete phases, the district court should not have abstained because the accused attorney was not provided with an opportunity for a timely adjudication of his federal claims by a competent state tribunal.

 The Third Circuit's opinion in Garden State highlights the novelty of the question whether, and in what circumstances, the Younger doctrine counsels federal court abstention in deference to pending state administrative proceedings. "When the existing Supreme Court precedent does not clearly require the federal courts to abstain," the Court observed, "we are reluctant to extend the abstention doctrine to deprive plaintiffs of their option of using the federal forum." At 129. See New Jersey Education Association v. Burke, 579 F.2d 764, 771 (3d Cir.), cert. denied, 439 U.S. 894, 99 S. Ct. 252, 58 L. Ed. 2d 239 (1978); Johnson v. Kelly, 583 F.2d 1242, 1249-50 (3d Cir. 1978). Because the appeal which plaintiff has taken from this court's judgment raises issues similar to those in Garden State, there is a substantial possibility that she will prevail.

 Nevertheless, I believe that there are significant distinctions between this case and Garden State and that the principles articulated by Judge Sloviter weigh in favor of abstention on the facts presented here. The determination of the Court of Appeals that abstention was improper in Garden State depended upon its analysis of New Jersey's bar disciplinary proceedings. These proceedings, the Court expressly noted, are sui generis. At 128. Whether abstention is appropriate in this case depends upon an analysis of New Jersey's scheme for tenure termination proceedings.

 The tenure termination process begins with the filing of written charges and a written statement of evidence with a local board of education. The board is then required to notify the accused teacher of the charges "forthwith" and, after providing the teacher with an opportunity to submit a written statement of position and evidence opposing them, to "determine by majority vote of its full membership whether there is probable cause to credit the evidence in support of the charge and whether such charge, if credited, is sufficient to warrant a dismissal or reduction of salary." If it finds that the charges are warranted, the board must notify the teacher "forthwith" and forward the written charges to the Commissioner of Education for a hearing. N.J.S.A. 18A:6-11.

 The Commissioner or a "person appointed to act in his behalf in the proceedings" is authorized, upon receipt of the charge and certification, to dismiss the charges if he believes they are insufficient to warrant dismissal or reduction in salary. "If, however, he shall determine that such charge is sufficient to warrant dismissal or reduction in salary of the person charged, he shall conduct a hearing thereon within a ...

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