On appeal from and on certification to the Appellate Division, Superior Court, whose opinions are reported at 217 N.J. Super. 267 (1986).
For affirmance -- Justices Clifford, O'Hern and Stein. For reversal -- Chief Justice Wilentz and Justices Handler, Pollock and Garibaldi. Stein, J., dissenting. Justices Clifford and O'Hern join in this opinion.
The judgment is reversed substantially for the reasons in the dissenting opinion of Judge Skillman, reported at 217 N.J. Super. 267 (1986).
In reversing the judgment of the Appellate Division, the Court today disregards the virtually immutable principle that the mandate of an appellate court must be obeyed by the tribunal to which it is directed. Flanigan v. McFeely, 20 N.J. 414, 420-21 (1956). It tolerates the State Board of Education's refusal to obey the Appellate Division's mandate in this case, accepting instead the State Board's contention that our decision in Rutherford Education Association v. Rutherford Board of Education, 99 N.J. 8 (1985), constituted an intervening change in the law. That contention simply does not withstand close scrutiny.
In Spiewak v. Rutherford Board of Education, 90 N.J. 63 (1982), we held that "public school teachers who provide part-time remedial or supplemental instruction to educationally disabled children," whether paid from state or federal funds, "may acquire tenure if they meet the specific criteria in N.J.S.A. 18A:28-5." Id. at 84. We specifically determined that our decision would not apply to teachers terminated prior to the date of the opinion in Spiewak, id. at 83 n.2, and, except for
the teachers involved in that litigation, held that our decision would have prospective application only. Id. at 83.
Spiewak was decided on June 23, 1982. In April, 1983, the Appellate Division rendered its initial decision in this case. It held that Ms. Maxfield was tenure-eligible when the Ridgewood Board of Education decided not to hire her for the 1976-77 school year. The Appellate Division observed that Ms. Maxfield filed her petition for a declaration of tenure eligibility in April, 1976, nine months earlier than the petitions filed by the teachers in Spiewak. The Court also noted the unexplained delay of three and one-half years between the conclusion of the hearings and the issuance of the Hearing Examiner's report and recommendation. In addition, the Court noted a concession by the State Board that in denying Ms. Maxfield's petition, it departed from its customary practice during the one-year period between the Appellate Division decision in Spiewak, 180 N.J. Super. 312 (1981), and our decision in that case. Its "ordinary remedy" during this period was to grant tenure status to teachers like Ms. Maxfield.
On the basis of these special factors, the Appellate Division concluded that it was not constrained by Spiewak from affording relief to Ms. Maxfield, and determined that the holding in Spiewak would be applied to her. The matter was then remanded to the State Board. We denied the Board of Education's petition for certification. 94 N.J. 591 (1983).
At that juncture, this litigation had been concluded in favor of Ms. Maxfield. All that remained was for the State Board of Education to implement the Appellate Division's judgment and determine the specific emoluments of tenure to which she was entitled.
However, the State Board failed to execute the Appellate Division's mandate. Instead, in June 1984, fourteen months after the Appellate Division decision, and without application to that court for a stay, it notified counsel that it was suspending further proceedings until our disposition of ...