April 29, 2008
LAURIE COLES, KAREN JIMENEZ, LINDA LYNCH, DAVID MILLER AND TRACIE MILLER, PATRICIA MURPHY, TRACIE LUCARELLO, FRANK DALY, JANET CONWAY, MARIE LIPSITZ, TARA SMALLZE, AND DARREN SMALLZE, ELIZABETH BEVAN, KELLY BOUSHAY, LENNY HARRIS, CYNTHIA CRESCENZO, LISA DOWNEY, AND MARK DOWNEY, CHERYL BUTLER, RUSSELL KING AND PATRICIA KING, MICHAEL LAROCCO AND ROBIN LAROCCO AND LAURA DEPINTO, PETITIONERS-APPELLANTS,
BAYONNE BOARD OF EDUCATION, RESPONDENT-RESPONDENT.
On appeal from a Final Judgment of the State Board of Education, 365-10/06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 15, 2008
Before Judges Coburn, Fuentes and Chambers.
In accordance with N.J.S.A. 18A:11-8, the Bayonne Board of Education adopted a mandatory school uniform policy on June 19, 2006. The policy was to become effective on September 25, 2006. On June 26, 2006, the Board adopted regulations to implement the uniform policy, and on July 28, 2006, and August 29, 2006, the regulations were amended in certain regards.
On October 10, 2006, appellants filed a petition with the Commissioner of Education challenging the adoption of the policy and requesting injunctive relief. The Commissioner transmitted the case to the Office of Administrative Law. The Administrative Law Judge ("ALJ"), after conducting an emergency hearing as requested by appellants, determined that appellants' petition to the Commissioner was time-barred. More specifically, the ALJ noted that a petition to the Commissioner attacking the initial resolution had to be filed within 90 days of the date on which the resolution was adopted. N.J.A.C. 6A:3-1.4. Since the resolution was adopted on June 19, 2005, and the petition was not filed until October 10, 2006, which was beyond the 90-day period allowed, a dismissal was in order. The Commissioner agreed with the ALJ in a written opinion, and the State Board of Education adopted the Commissioner's opinion as its own.
Appellants now offer the following arguments:
POINT I: THE PETITION WAS TIMELY
A. Petitioners sought relief within 90 days after August 29th, and the Board policy was not complete until then.
B. Even if the 90 day period should have run from June 29th, statements of Board officials estop the Board from making that argument.
C. Even if the 90 day period should have run from June 19th, the rules should have been relaxed under N.J.A.C. 6A:3-1.16 because strict adherence was inappropriate and resulted in injustice.
POINT II: THE CROWE v. DEGIOIA FACTORS WARRANT INJUNCTIVE RELIEF
A. The preliminary injunction standard
1. The harm suffered cannot be redressed by monetary damages or by any other remedy available at law.
2. It is probable that petitioners will succeed on the merits of their case.
3. The legal right underlying petitioners' claim is clear.
4. Petitioners have suffered harm since injunctive relief was denied below.
5. The harm to the Board if injunctive relief is granted is nonexistent.
After carefully considering the record and briefs, we are satisfied that the decision of the State Board of Education is supported by sufficient credible evidence on the record as a whole, R. 2:11-3(e)(1)(D), and that all of appellants' arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.
As the ALJ found, appellants did not challenge the amendments made by the Bayonne Board of Education after the adoption of the policy on June 19, 2006. Rather, the challenge was to the original policy. The 90-day rule for petitions to the Commissioner has been strictly construed. Riely v. Hunterdon Central H.S. Board of Ed., 173 N.J. Super. 109 (App. Div. 1980). Appellants have failed to provide any reasonable excuse for their delay in pursuing the matter before the Commissioner.
There is no basis here for employment of the doctrine of estoppel as against the Bayonne Board. See, e.g., Kaprow v. Berkeley Twp. Board of Educ., 131 N.J. 572, 589-90 (1993); Township of Fairfield v. Likanchuk's, Inc., 274 N.J. Super. 320, 331 (App. Div. 1994); Fraternal Order of Police v. Bd. of Trs. Of Police and Firemens' Ret. Sys., 340 N.J. Super. 473, 484-88 (App. Div. 2001).
The true thrust of appellants' position is that the uniform policy is unconstitutional, but that is not a matter that could have been resolved by either the ALJ, the Commissioner, the State Board of Education, or indeed at all in the context of this litigation, which is, after all, an appeal from an administrative agency.
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