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P.P., A Minor, By His Parent and Guardian, A.S v. Board of Education of the Pinelands Regional School District


January 11, 2011


On appeal from the State Board of Education, 112-6/09.

Per curiam.


Argued November 3, 2010 - Decided

Before Judges Carchman, Messano and Waugh.

On April 17, 2008, plaintiff P.P., an eighth-grade student at Pinelands Regional Middle School, was found with a single pill of an over-the-counter allergy medication, Alavert, in his locker. Defendant, the Board of Education of the Pinelands Regional School District (the Board), suspended plaintiff for five days. Almost eleven months later, on March 9, 2009, plaintiff filed this complaint. In the first count, brought as an action in lieu of prerogative writs, plaintiff alleged that the Board's action was ultra vires, specifically the Board's "zero tolerance policy" "exceed[ed] its authority under the governing statutes and regulations." In the second count, plaintiff alleged that the Board's policy violated his "procedural due process" rights under Article I, paragraph 1 of the New Jersey Constitution.

The Board asserted two affirmative defenses in its answer to the complaint. First, the Board alleged that Count One of the complaint should be dismissed because it was filed beyond the 45-day time limit contained in Rule 4:69-6. Second, the Board alleged that "[p]rimary jurisdiction over . . . Count [Two] of the Complaint [lay] with the Commissioner of Education [(the Commissioner)]." The Board moved to dismiss the complaint on both grounds.

On May 29, 2009, the Law Division judge granted defendant's motion and dismissed Count One with prejudice, finding it was time-barred by Rule 4:69-6(a). The judge dismissed Count Two without prejudice and "transferred" the matter to the Commissioner, concluding she had primary jurisdiction over the dispute.

The Office of Administrative Law (OAL) in turn transferred the matter to an Administrative Law Judge (ALJ) as a contested matter. The Board moved to dismiss the administrative complaint alleging it was time-barred. See N.J.A.C. 6A:3-1.3(i) ("a petition [shall be filed] no later than the 90th day from the date of receipt of the notice of a final order, ruling or other action by the district board of education"). The ALJ agreed that plaintiff's administrative complaint was time-barred.

In her final decision, the Commissioner concurred with the ALJ's determination that the administrative complaint was time-barred. With respect to the "weightier" constitutional challenge, the Commissioner concluded that "[a]dministrative agencies generally lack jurisdiction to decide purely constitutional claims." While "understand[ing] and empathiz[ing] with" plaintiff's frustration, the Commissioner determined that she "lack[ed] jurisdiction to decide [the] constitutional claims." Believing plaintiff could "re-file a facial [c]onstitutional challenge to [the Board's] zero tolerance drug policy in Superior Court," the Commissioner granted the Board's motion and dismissed the administrative complaint.

On appeal, plaintiff argues that the Law Division judge erred by dismissing the prerogative writ action as time-barred. He contends that the issue involves a matter of great public interest and implicates Constitutional questions; therefore, the judge should have relaxed the time constraints of Rule 4:69-6(a). Plaintiff further contends that the Commissioner should address the merits of his Constitutional challenge to the policy and seeks our order remanding the matter to the Commissioner with instructions that she decide the issue. We have considered these arguments in light of the scant record that exists. We affirm the dismissal of Count One of the complaint. However, we remand the matter to the Law Division for consideration of the merits of plaintiff's constitutional challenge in Count Two.

The substance of plaintiff's claims was never considered. The appellate record consists of some documentary evidence but it contains little else since discovery never occurred. At oral argument before us, the parties themselves supplemented the record to some degree, although we cannot conclude that factual disputes do not exist.

What appears undisputed is that the Board's 2008 Student Handbook contained an "Attendance/Discipline Policy" that required all students "to adhere to the rules and regulations established by the administration, and to comply with such disciplinary measures as assigned for infractions of the[] rules." The Code of Conduct prohibited "[d]rugs/[a]lcohol/[and] [c]hewing [t]obacco." "Misbehaviors" for which an "[o]ut-[o]f[s]chool suspension" could be imposed included a student's "[p]ossession . . . of any item[] . . . considered dangerous (e.g., weapons, drugs, alcohol, firecrackers, etc.)." Such conduct carried a five-day suspension, though the policy permitted modification at the discretion of the Principal or Assistant Principal. The policy further provided that "a parent conference will be arranged for the mutual convenience of the parent/staff/administration. It may occur the day of due process during the listed [suspension] days or the first day after the suspension."*fn1

The Board also adopted a separate policy regarding the administration of medication. It prohibited the administration of any medication to pupils unless the student's parents requested it in writing; then, only medical professionals would dispense the medication.

On April 18, 2008, plaintiff was suspended. In a letter to his mother, dated April 28, the assistant principal advised that plaintiff was suspended for five school days -- April 18, 28, 29, and 30, and May 1. The violation cited plaintiff's possession of an item that was "[i]llegal or [c]onsidered [d]angerous." We were advised that a parent/staff conference took place, though when that occurred is unclear. In any event, plaintiff's mother wrote the County Executive Superintendent, who responded to her on May 5. He noted that the school had provided him with a chronology of events. We recite them only for context since we gather from oral argument that plaintiff contests some of the allegations contained in the letter.

The Executive Superintendent wrote that a staff member at the school saw plaintiff and a group of students "acting in a manner that aroused suspicion" on April 16. When the students observed the staff member, "the group dissipated." On April 17, the staff member met with a parent who expressed concerns "that possibly transactions involving pills were taking place in school." On April 18, the school administration "decided there was a possibility of pill possession." Plaintiff's locker was searched and the Alavert pill was found. The Executive Superintendent advised plaintiff's mother that "[b]ased on the nature of this infraction of the district's drug policy, disciplinary actions were taken." The Executive Superintendent concurred with the Board's decision. With that background, we consider the procedural arguments plaintiff raises on appeal.

Rule 4:69-6(a) provides that, "[n]o action in lieu of prerogative writs shall be commenced later than 45 days after the accrual of the right to the review, hearing or relief claimed, except as provided by paragraph (b) of th[e] rule." None of the exceptions contained in paragraph (b) apply. It is undisputed that plaintiff filed his action in lieu of prerogative writs well beyond the time limit.

Plaintiff argues that the 45-day rule may be relaxed "where it is manifest that the interest of justice so requires." R. 4:69-6(c). He correctly notes that our courts have recognized relaxation is appropriate when the issue involves (1) important and novel constitutional questions; (2) informal or ex parte determinations of legal questions by administrative officials; and (3) important public rather than private interests which require adjudication or clarification. [Borough of Princeton v. Bd. of Chosen Freeholders of Mercer, 169 N.J. 135, 152 (2001) (Brunetti v. Borough of New Milford, 68 N.J. 576, 586 (1975)).]

We have said that "[e]ven if a case involves purely private interests, a court may conclude that the 'interest of justice' warrants an enlargement of the forty-five day period." Gregory v. Borough of Avalon, 391 N.J. Super. 181, 189 (App. Div. 2007) (citing Cohen v. Thoft, 368 N.J. Super. 338, 346-47 (App. Div. 2004)).

Plaintiff argues that relaxation was required in this case because he raised an issue of significant public interest, e.g., school zero tolerance drug policies; that his claim implicated constitutional rights; that enforcement of the policy was continuing and could affect others; that the Board, therefore, had no legitimate claim of "'repose'" for its decision; and that his claim sought "more than mere review of his particular suspension." As we see it, however, Count One of plaintiff's complaint sought the reversal of his suspension and its expungement from his disciplinary record. That was the essential prayer for relief. Plaintiff was well aware of the Board's decision no later than May 5, 2008 yet, somewhat inexplicably, never sought review until ten months later.

There is another, more important reason, why the dismissal of Count One must be affirmed. Our Legislature has enacted on extensive scheme for enforcement of our public education laws. N.J.S.A. 18A:6-9 provides that "[t]he commissioner shall have jurisdiction to hear and determine . . . all controversies and disputes arising under the school laws . . . ." Chapter 37 of Title 18A, in turn, provides a comprehensive scheme for the discipline of children attending public schools. This includes a non-exhaustive list of the grounds for suspending or expelling a student, N.J.S.A. 18A:37-2; procedures for discipline involving assaultive conduct by a student, N.J.S.A. 18A:37-2.1 to -2.5; procedures for the immediate suspension of a student, N.J.S.A. 18A:37-4; procedures for disciplinary action against students found with firearms, N.J.S.A. 18A:37-7 to -12; and procedures for disciplinary action based upon "bullying," N.J.S.A. 18A:37-13-15.

The Commissioner, in turn, has adopted numerous regulations implementing the statutory scheme. See N.J.A.C. 6A:16-1.1 to -7.10. Indeed, the gravamen of the first count of plaintiff's complaint involved a question of the permissible scope and necessary procedures regarding discipline of a student under Title 18A and its regulations, and whether they were violated when plaintiff was suspended.

We have noted "our institutional respect for the Department's subject matter interest and for the Commissioner's first-instance jurisdiction 'to hear and determine . . . all controversies and disputes arising under the school laws[.]'"

Archway Programs, Inc. v. Pemberton Twp. Bd. of Educ., 352 N.J. Super. 420, 424 (App. Div. 2002) (quoting N.J.S.A. 18A:6-9). "The Commissioner's authority is plenary." Ibid. (citing Abbott v. Burke (I), 100 N.J. 269, 301 (1985)).

Rule 4:69-5 provides that "[e]xcept where it is manifest that the interest of justice requires otherwise, actions under R. 4:69 shall not be maintainable as long as there is available a right of review before an administrative agency which has not been exhausted." Had plaintiff properly raised a challenge to his suspension via a timely administrative appeal, the Commissioner's decision would have been directly reviewable by this court based upon a full agency record. R. 2:2-3(a)(2). As plaintiff chose not to do so, we will not now intervene. We affirm the dismissal of Count One of plaintiff's complaint.

We reach a different result, however, with respect to the constitutional challenge plaintiff asserts in the second count of the complaint. In this regard, the Law Division judge invoked the doctrine of primary jurisdiction, referred the matter to the Commissioner and dismissed the complaint without prejudice. Plaintiff contends that invocation of the doctrine of primary jurisdiction was inappropriate. We disagree.

"Under the doctrine of primary jurisdiction, when enforcement of a claim requires resolution of an issue within the special competence of an administrative agency, a court may defer to a decision of that agency." Campione v. Adamar, Inc., 155 N.J. 245, 263 (1998) (citations omitted). "Thus, it may be appropriate, in order to avoid piecemeal adjudication or duplicative, anomalous or contradictory results, for a court to defer in its jurisdictional exercise, even if only temporarily, while the administrative agency with the primary interest sorts out the issues and the claims." Archway Programs, Inc., supra, 352 N.J. Super. at 425 (citations omitted).

Plaintiff argues that invocation of the doctrine was inappropriate because Count Two of the complaint was a "'pure' constitutional claim, based on undisputed facts." However, as we have already noted, the factual record is not at all clear and undisputed. For example, the Board's foreknowledge of plaintiff's activities before the suspension is apparently disputed; the exact procedure followed by the Board to suspend plaintiff is unclear to us from this record; and the extent of plaintiff's and his mother's participation in meeting with the school staff, and when that occurred, is unexplained.

The doctrine of primary jurisdiction is designed to foster "the resolution of technical questions of facts through the agency's specialized expertise, prior to judicial consideration of the legal claims." Unalachtigo Band of the Nanticoke-Lenni Lenape Nation v. State, 375 N.J. Super. 330, 345-46 (App. Div.) (citations and quotations omitted), certif. denied, 184 N.J. 210 (2005). The Law Division judge reasonably and undoubtedly believed that he would benefit from the development of a full factual record before the Commissioner. Of course, for the reasons stated, he was denied that opportunity. In any event, we cannot conclude that the Law Division judge mistakenly exercised his discretion in referring the matter to the Commissioner. See Alliance for Disabled In Action, Inc. v. Cont'l Props., 371 N.J. Super. 398, 408 (App. Div. 2004) (noting the trial judge's decision to invoke the doctrine of primary jurisdiction is subject to review under an abuse of discretion standard), aff'd, 185 N.J. 331 (2005).

However, under the doctrine of primary jurisdiction, the court is not divested of its jurisdiction ultimately to decide the legal claims plaintiff has raised based, in theory, upon the agency fact-finding. Boss v. Rockland Elec. Co., 95 N.J. 33, 42 (1983). By dismissing Count Two of the complaint without prejudice, it would appear that the Law Division judge anticipated that the legal issues might ultimately need to be resolved in court.

Plaintiff has never had the opportunity to present his claim that the Board's suspension policy violates constitutional due process guarantees. Such a claim is peculiarly subject to the court's jurisdiction. See e.g., Paterson Redevelopment Agency v. Schulman, 78 N.J. 378, 388, cert. denied sub nom., Schulman v. Paterson Redevelopment Agency, 444 U.S. 900, 100 S. Ct. 210, 62 L. Ed. 2d 136 (1979).

We therefore remand the matter to the Law Division so that the second count of plaintiff's claim may be reinstated. The only remaining issue before the Law Division is plaintiff's constitutional challenge to the Board's policy, not the review of its application to plaintiff individually. We leave to the trial judge's sound discretion the management of the litigation thereafter, including any discovery or case management necessary to fully elucidate the questions presented.

Affirmed in part; remanded in part; we do not retain jurisdiction.

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