On appeal from New Jersey Commissioner of Education.
Fritz, Furman and Deighan. The opinion of the court was delivered by Fritz, P.J.A.D.
[195 NJSuper Page 173] Appellants, a child resident in New Jersey but enrolled in a private school in Pennsylvania and her parents, unsuccessfully challenged the refusal by the local Board of Education of their request for private school transportation. Asserting here that
N.J.S.A. 18A:39-1 is unconstitutional as limited by this rejection, they appeal.*fn1 We affirm.
The Reeds brought an action in the Chancery Division seeking a declaratory judgment declaring N.J.S.A. 18A:39-1 to be unconstitutional to the extent that it was construed to limit payment for transportation to that "within the State" and to deny transportation to a private school in an adjoining state.*fn2 [195 NJSuper Page 175] Judge Dreier, sitting in Chancery, determined that the matter fell "within the jurisdiction of the Commissioner of Education" and transferred it to the Department of Education. The matter was referred to the Office of Administrative Law where the filing of a stipulation by the parties obviated the need for a plenary hearing and the Administrative Law Judge made his determination, reflected in his Initial Decision, on the basis of that stipulation. In that Initial Decision he recognized that the limitation "within the State" found in the statute was the focus
of the issue.*fn3 Believing the Commissioner of Education to be without jurisdiction "to interpret the constitutionality of the exclusion," and believing West Morris Reg. Bd. of Ed. v. Sills, 58 N.J. 464 (1971), cert. den. 404 U.S. 986, 92 S. Ct. 450, 30 L. Ed. 2d 370 (1971) to be distinguishable, while finding that the exclusion of the statute compelled the local board to do what it did, he entered judgment for the original defendants, respondents in the agency.
Notably, as observed by the Commissioner of Education in his consequent decision, the exceptions filed with the Commissioner by appellants did not challenge or address the merits. They did no more than "object to having had the entire matter processed through the Office of Administrative Law only to have jurisdiction declined at this late stage." The Commissioner adopted the findings and determination of the Initial Decision as his own.
The parties did not brief nor do we consider the issue of whether the agency is required to lend its assistance to a local board in the enforcement of a statute the constitutionality of which is reasonably suspect. It would appear that administrative agencies do lack jurisdiction to decide constitutional claims, Paterson Redevelopment Agency v. Schulman, 78 N.J. 378, 388 (1979), cert. den. sub nom. Schulman v. Paterson Redevelopment Agency, 444 U.S. 900, 100 S. Ct. 210, 62 L. Ed. 2d 136 (1979), and the Commissioner of Education has uniformly held this to be so. We only mention this because we can understand and empathize with the frustration of a plaintiff in a declaratory judgment action designed to test the constitutionality of a statute who is relegated to a forum where that issue cannot be decided. It is of no particular moment here, because we do have that jurisdiction and are prepared to declare the statute constitutional even as limited.
In their first point appellants argue unconstitutionality as a matter of violation of "the due process and equal protection provisions of the Constitutions of the State of New Jersey and the United States." We note at the outset that, except as due process considerations are inherent in the absence of equal protection, the due process facet is not argued in appellants' brief. Accordingly, we will not consider it here.*fn4
With respect to the equal protection argument we observe that the Administrative Law Judge found that petitioners' (i.e., appellants' and presumably respondents') reliance on West Morris Regional was misplaced. He was correct in this regard, because as he pointed out, the Supreme Court in West Morris Regional found no reason to consider the out-of-state private school problem, as a result of which that case is not judicial authority for a constitutional decision as far as the agency is concerned. Further, this makes apparent the fact that the West Morris Regional case is distinguishable. But we have no doubt that the principle enunciated in that opinion applies to the circumstances of the matter before us. West Morris Regional clearly ...