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 60-day period after the receipt thereof upon reasonable notice to all parties in interest." N.J.S.A. 18A:6-16.
New Jersey has recently provided by statute an Office of Administrative Law designed to create a staff of independent and professional administrative law judges to preside over proceedings in contested agency cases in which notice and a hearing is required under the State Administrative Procedure Act. N.J.S.A. 52:14F-5(n). The procedures for conducting contested hearings are outlined in Sections 9 and 10 of the Administrative Procedure Act, N.J.S.A. 52:14B-9 & 10. Section 10(c) requires all contested agency hearings to be conducted by an administrative law judge. After a hearing has been held, the administrative law judge is required to file with the agency within 45 days a "recommended report and decision which contains recommended findings of fact and conclusions of law and which shall be based upon sufficient, competent, and credible evidence ... in such form that it may be adopted as the decision in the case." After the parties have been provided an opportunity to file "exceptions, objections, and replies" to the recommended decision and to make oral or written argument, the agency head "upon a review of the record submitted by the administrative law judge, shall adopt, reject or modify the recommended report and decision no later than 45 days after receipt of such recommendation." For good cause shown, the specified time limitations may be extended. N.J.S.A. 52:14B-10(c). A final decision adverse to a party in a contested case is required to be "in writing or stated in the record." A final decision must "include findings of fact and conclusions of law, separately stated and shall be based upon the evidence of record at the hearing." N.J.S.A. 52:14B-10(d). From an adverse determination of the Commissioner, an aggrieved party has a right of appeal to the New Jersey Department of Education, N.J.S.A. 18A:6-27 or to the Superior Court of New Jersey, Appellate Division, New Jersey Court Rules 2:2-3(a).
Plaintiff clearly commenced her federal law suit after an adjudicatory phase of the administrative proceedings had commenced. On June 3, 1980 the Red Bank Board of Education determined on the basis of evidence submitted by both plaintiff and her accuser, Joan D. Abrams, that probable cause existed to dismiss her or reduce her salary. The charges were forwarded to the Commissioner and plaintiff was suspended with pay. Plaintiff filed her federal action on July 14, 1980.
The proceedings before the administrative law judge are not limited to fact-finding and can result in the imposition of discipline. The administrative law judge is explicitly required to make recommended findings of fact and of law. Nothing in the Administrative Procedure Act prohibits an administrative law judge from determining constitutional questions as part of his legal decision and indeed it is obvious that he must do so in order to fulfill his assigned function. Ordinarily a decision recommended by an administrative law judge is presented to the agency head for his adoption, modification or disapproval. If the agency head fails to modify or reject the decision of the administrative law judge within forty-five (45) days, however, and an extension of time is not granted, "the decision of the administrative law judge shall be deemed adopted as the final decision of the head of the agency." N.J.S.A. 52:14B-10(c). Once an adverse decision becomes the final decision of the agency, the accused teacher is subject to the imposition of discipline. The administrative proceedings which were pending in the present case when the federal action was filed cannot be characterized, as were the proceedings in Garden State, as the analog of the pre-indictment stages of a criminal action.
The opinion of the Court of Appeals in Garden State also suggested that abstention may not be appropriate where the administrative tribunal before which state proceedings are pending is not competent to determine constitutional issues. Specifically, Judge Sloviter observed that the composition of the state bar's Ethics Committee "which includes non-lawyers, clearly indicates it is not designed or intended to deal with constitutional rulings which often require substantial legal background and the ability to make subtle legal differentiations." At 126. It is true that New Jersey administrative law judges are not required by statute to be lawyers. N.J.S.A. 52:14F-5(l ) provides that:
Administrative law judges shall be attorneys-at-law of this State, or any persons who are not attorneys-at-law, but who, in the judgment of the Governor or the director are qualified in the field of administrative law, administrative hearings and proceedings in subject matter relating to the hearing functions of a particular agency.
The administrative law judges are required by statute, however, to base their decisions upon any law that is applicable to the case, be it state law or federal law. There is no reason to believe that plaintiff, who is entitled to full legal representation at the administrative hearings and has an opportunity to submit written briefs and arguments of law, will not be able "to raise and have timely decided by a competent state tribunal the federal issues involved". At 123, quoting Gibson v. Berryhill, supra, at 577.
While plaintiff's appeal certainly presents to the Court of Appeals novel, difficult and important questions relating to the scope of the Younger doctrine, I do not believe that she has made a showing of a substantial probability of success on appeal, the Third Circuit's decision in Garden State notwithstanding. It is necessary, therefore, to turn to the remaining prerequisites for injunctive relief under Rule 62(c) to determine whether a stay of the state administrative proceedings should be granted.
Plaintiff argues that if a stay is not granted and if the Court of Appeals reverses this Court's decision to abstain under the Younger doctrine she will be irreparably harmed because the federal questions will already have been decided by the state administrative body, the principles of res judicata may be applied to preclude further litigation of her claims in the federal court, and she will therefore have been deprived of a federal forum to which she was entitled in the first instance. I disagree.
There is no doubt that by the time an appeal is heard, plaintiff's federal claims will already have been determined by the administrative law judge if she chooses to raise them in the state forum. It is also clear that the principles of res judicata apply with full force to actions brought under Section 1983. Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980). "(N) othing in the language or legislative history of § 1983," the Supreme Court held in Allen v. McCurry, "proves any congressional intent to deny binding effect to a state court judgment or decision when the state court, acting within its proper jurisdiction, has given the parties a full and fair opportunity to litigate federal claims, and thereby has shown itself willing and able to protect federal rights." Id., -- U.S. at -- , 101 S. Ct. at 419-420. From this, however, it does not follow that plaintiff will be irreparably harmed. If she is granted a "full and fair" opportunity to litigate her federal claims in the state proceedings, then she will not be substantially harmed. The Supreme Court has consistently emphasized that the state courts, in the exercise of their concurrent jurisdiction, are just as capable of determining federal issues as their federal counterparts, and no presumption will be maintained to the contrary. See Stone v. Powell, 428 U.S. 465, 493-94, 96 S. Ct. 3037, 3051-3052, 49 L. Ed. 2d 1067 (1976); see also Allen v. McCurry, supra -- U.S. at -- , 101 S. Ct. at 420. If, on the other hand, plaintiff does not receive a full and fair hearing at the hands of the state with an opportunity to fully litigate her federal claims, she will not, by definition, be precluded by the doctrine of res judicata.
Plaintiff suggests that if the administrative proceedings are permitted to take place as planned, plaintiff's appeal before the Third Circuit may become moot. The Third Circuit Court of Appeals was presented with a case in substantially the same posture, however, in New Jersey Education Association v. Burke, 579 F.2d 764 (3d Cir. 1978) and proceeded to the merits of the abstention issue without any concern for mootness. In view of the conditional nature of the doctrine of res judicata a live case or controversy will remain, even after the administrative hearings have been held, sufficient to defeat an attack on mootness grounds.
Plaintiff has also suggested the possibility of waiving consideration of her federal claims by the state courts and preserving her option to proceed on the federal claims in the federal court in an England -type fashion. See England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S. Ct. 461, 11 L. Ed. 2d 440 (1964). Such a tactic, albeit endorsed by Judge Adams in New Jersey Education Association v. Burke, supra at 772-774, would appear to be not only unnecessary but also quite dangerous. If the Court of Appeals affirms my decision on appeal it is not at all clear that plaintiff's waiver will provide her with an effective or a timely opportunity to proceed on her constitutional claims before a federal forum. See Allen v. McCurry, supra at -- n. 10, 101 S. Ct. at 416, n. 10. ("A very few courts have suggested that the normal rules of claim preclusion should not apply in § 1983 suits in one peculiar circumstance: Where a § 1983 plaintiff seeks to litigate in federal court a federal issue which he could have raised but did not raise in an earlier state court suit against the same adverse party ... These cases present a narrow question not now before us, and we intimate no view as to whether they were correctly decided.") Clearly, however, plaintiff is in no way constrained to take this risky course.
Turning to the interest of the public, which must also be considered in determining whether to grant plaintiff's motion for an injunction staying the state administrative proceedings pending resolution of the appeal, I conclude that the public has an interest in permitting the state proceedings to go forward. The doctrine of abstention recognizes that the state has a strong interest in pursuing certain kinds of legal actions and that if a federal plaintiff's rights can be adequately protected in those actions they should be allowed to proceed. If the federal courts were not to abstain in a case such as this it would not be at all surprising to find that in state and municipal disciplinary proceedings of every sort a violation of federal rights would be alleged and relief sought in the federal courts to the preclusion of the state bodies established to hear such matters. This would disrupt sound administration not only of schools but of other state and municipal agencies and would not be in the public interest. Since granting an injunction now would have the same consequences as declining to abstain, I conclude that granting plaintiff's motion would not be in the public interest.
In sum, plaintiff has failed to show the necessary degree of irreparable harm which would be necessary to justify the issuance of an interim injunction pending a decision by the Court of Appeals in this matter. The interests of other parties to this proceeding and of the public as a whole would be adversely affected by a stay of the state administrative proceedings.
For the foregoing reasons, plaintiff's motion for an injunction staying the state administrative proceedings before the Commissioner of Education of the State of New Jersey will be denied.
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