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COOPERMAN v. BOARD OF EDUC. OF HILLSIDE TWP.

January 21, 1983

SAUL COOPERMAN, Commissioner of Education of State of New Jersey Plaintiff,
v.
BOARD OF EDUCATION OF HILLSIDE TOWNSHIP, UNION COUNTY, JAMES E. CLARK, ARTHUR A. CUTILLO, DANIEL FARRELL, WILLIAM L. HICKS, MILDRED C. KARLIK, ROBERT MAFFIORE, GENNARO MESSANO, CATHERINE PEASE, and FRANKLIN E. WOODRUFF, individually and in their official capacity as members of the Board of Education of the Township of Hillside, Defendants



The opinion of the court was delivered by: BIUNNO

 This suit, originally filed in Superior Court of New Jersey, Law Division, Union County, Docket L-20598-82, was removed to this court by petition for removal filed here January 17, 1983 at 12:15 P.M., along with notice of removal and bond. Fifteen minutes later the defendants' attorney filed a notice of motion to remand under 28 USC § 1447(c), or to dismiss the petition under 28 USC § 1446.

 After reviewing the papers the court heard argument from both sides and after deliberation entered an order for remand under 28 USC § 1447(c), with jurisdiction retained only for the purpose of articulating reasons. This was done because a Superior Court hearing was scheduled for the next day at 2 PM and so the remand had to be ordered without delay.

 The practice of entering an order as soon as a matter is decided, and filing an opinion later is well established in situations where time is important. See, for example, Mesarosh v. U.S., where an order was entered October 10, 1956 (352 U.S. 862, 77 S. Ct. 8, 1 L Ed 2d 72), and an opinion was rendered November 5, 1956 (352 U.S. 1, 1 L. Ed. 2d 1, 77 S. Ct. 1); also Aaron v. Cooper, in which an order was entered on August 28, 1958 in Special Term (358 U.S. 27, 3 L Ed 2d 1, 78 S. Ct. 1397), rulings on motions for briefs and other matters were made September 11, 1958 (358 U.S. 29, 3 L. Ed 2d 3, 78 S. Ct. 1398), a disposition on the merits was made per curiam on September 12, 1958 (358 U.S. 5, 78 S. Ct. 1399, 3 L Ed 2d 3), and a full opinion by the Chief Justice was delivered September 29, 1958 (358 U.S. 1, 3 L. Ed. 2d 5, 78 S. Ct. 1401).

 The Earlier Litigation.

 The N.J. Commissioner of Education had entered an order to rectify what he found to be a gross racial imbalance in the free public elementary schools of the Township of Hillside, N.J. That order had been appealed to the N.J. State Board of Education, which affirmed.

 The Hillside Board then sought judicial review by prerogative writ (certiorari), see N.J. Const. Art. 6, sec. 5, par. 4. From the time of the first rules of September 15, 1948, prerogative writ review of the final decision or action of any State Administrative Agency was in the Superior Court, Appellate Division, initiated by "notice of appeal", although that step took the matter into a court from the Executive Branch for the first time. See Rule 3:81-8 (1948). That practice remains the same, N.J. Court Rule R. 2:2-3(a)(2) (1983).

 In an unpublished opinion, the Part that heard the matter then ruled that a de facto imbalance invoked the remedial jurisdiction of the Commissioner and the State Board, as a matter of New Jersey law, citing Booker v. Plainfield, etc., 45 N.J. 161, 212 A.2d 1 (1965). That case, while noting that Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954) did not deal with "de facto" segregation, and while noting that federal judges as of 1965 were in disagreement on the matter as a question of federal law, saw no obstacle to dealing with the problem as a matter of State law and policy, which may extend beyond the boundaries of federal law.

 The court pointed to N.J. Const., 1947, Art. 1, par. 5, declaring that:

 
"No person shall * * * be segregated * * * in the public schools because of * * * race * *."

 It pointed to statutes as far back as N.J.P.L. 1881, c. 149 (then NJSA 18:14-2), as well as more recent laws such as N.J.P.L. 1949, c. 11 (then N.J.S.A. 18:25-4 and 5), and decisions of the New Jersey courts.

 Thus, the Appellate Division affirmed the State Board and further review was sought by petition to the Supreme Court of New Jersey for certification and by notice of appeal, but both were denied June 8, 1982, see Herring v. Fenton, 531 F. Supp. 937 (D.N.J. 1981), discussion at pp. 944-945.

 Thereafter, various proposals were submitted by the Hillside Board and rejected by the Commissioner on various grounds and the present complaint was filed, seeking to order the Hillside Board to implement a plan selected by the Superior Court from among three plans developed by the N.J. Department of Education.

 With this background, it is plain that the first adjudication by the Superior Court, Appellate Division is entitled to full faith and credit here under 28 USC § 1738, see Kremer v. Chemical Construction Corp., 456 U.S. 461, 72 L Ed 2d 262, 102 S. Ct. 1883 (1982). That ruling concluded that the correction of de facto imbalances was called for by State law, a matter no different in principle than what was involved in Pruneyard Shopping Center v. Robins, 447 U.S. 74, 64 L. Ed. ...


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