November 21, 2011
JANE DOE, A MINOR CHILD, THROUGH HER PARENTS JOHN & JUNE DOE, ALL FICTITIOUS, PLAINTIFFS-APPELLANTS,
HADDONFIELD BOARD OF EDUCATION, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Camden County, Docket No. C-178-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 2, 2011
Before Judges Lihotz and Waugh.
Plaintiff Jane Doe, acting through her parents John and June Doe, appeals from the order of the General Equity Part that dismissed her action against defendant Haddonfield Board of Education (Board) and deferred primary jurisdiction to the Commissioner of Education. We affirm in part, but remand for entry of an order retaining jurisdiction pending completion of the administrative process.
The Does filed their complaint, along with an application for an order to show cause (OTSC), on December 9, 2009. An amended complaint was filed later in the month. The Does sought to enjoin enforcement of the Board's drug and alcohol policy to the extent it sought to govern non-school-related conduct that takes place off of school property at any time of day or night. The amended complaint set out a number of legal theories, including violation of the New Jersey and United States Constitutions and the provisions of New Jersey's Education Law (NJEL), N.J.S.A. 18A:1-1 to 76-4. It also stated a claim under 42 U.S.C.A. § 1983, for which Jane sought nominal damages and counsel fees.
The General Equity judge issued the OTSC on December 24, 2009. On January 8, 2010, the Does moved on short notice for temporary restraints with respect to the Board's proposed application of the policy to Jane. That motion was resolved with an agreed-upon informal stay during a telephone conference among counsel and the judge. The judge heard oral argument on the return date of the OTSC, January 26, and dismissed the amended complaint sua sponte. The judge determined that the Does had failed to exhaust their administrative remedies before the Commissioner. The final judgment, which was entered on February 5, recites that the Board had agreed not to pursue enforcement of its policy as to Jane, pending her application to the Commissioner for emergent relief. The judge did not retain jurisdiction with respect to the other causes of action set forth in the complaint.
On appeal, the Does argue that the judge erred in dismissing the amended complaint because exhaustion of administrative remedies is not a prerequisite to an action under 42 U.S.C.A. § 1983. They rely on Hochman v. Board of Education of Newark, 534 F.2d 1094, 1096 (3d Cir. 1976), which observes that "[t]he [United States] Supreme Court has consistently noted that exhaustion of state remedies, whether judicial or administrative, is not required prior to the commencement of an action under 42 U.S.C. § 1983 in federal court." See also Lloyd v. Stone Harbor, 179 N.J. Super. 496, 509 (Ch. Div. 1981) ("The United States Supreme Court and other federal courts have held expressly that state administrative remedies need not be exhausted in connection with suits brought under the federal Civil Rights Act, 42 U.S.C.A. § 1983.").
The Does brought their action in the Superior Court, rather than the United States District Court, and they raised claims in addition to their § 1983 claim, including one related to the Board's authority to adopt its policy under the NJEL. N.J.S.A. 18A:6-9 vests the Commissioner of Education with "jurisdiction to hear and determine, without cost to the parties, all controversies and disputes arising under the school laws."
"'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.'" Archway Programs, Inc. v. Pemberton Twp. Bd. of Educ., 352 N.J. Super. 420, 425 (App. Div. 2002) (quoting Campione v. Adamar of N.J., Inc., 155 N.J. 245, 263 (1998)). In this way, "'[t]he doctrine of primary jurisdiction, like that requiring exhaustion of administrative remedies, promotes proper relationships between courts and regulatory agencies.'" Ibid. (quoting Campione, supra, 155 N.J. at 263). In addition, "[a]dministrative agencies are clearly empowered to determine issues within their jurisdiction even though the resolution of those issues implicates constitutional claims." Desilets ex rel. Desilets v. Clearview Reg'l Bd. of Educ., 137 N.J. 585, 595 (1994) (citing Christian Bros. Inst. v. N. N.J. Interscholastic League, 86 N.J. 409, 416 (1981) (noting "[a]dministrative agencies have power to pass on constitutional issues . . . [when] relevant and necessary to resolution of a question concededly within their jurisdiction")); Hunterdon Cent. High Sch. Bd. of Educ. v. Hunterdon Cent. High Sch. Teachers' Ass'n, 174 N.J. Super. 468, 474-75 (App. Div. 1980), (ruling "administrative agencies are competent to pass upon constitutional issues germane to proceedings before them") aff'd o.b., 86 N.J. 43 (1981).
Especially because the amended complaint squarely challenged the Board's authority to adopt the regulation, we find no error in the trial judge's decision to require that the controversy between the Does and the Board be determined by the Commissioner in the first instance. See Muise v. GPU, Inc., 332 N.J. Super. 140, 160 (App. Div. 2000) (holding that a court should exercise its discretion to defer to the primary jurisdiction of an agency where failure to do so would be inconsistent with the statutory scheme conferring regulatory authority on the agency). Having brought a variety of claims, the Does were not in a position to determine in what order they would be determined.
The real issue on this appeal is whether the judgment on appeal precludes adjudication of Jane's § 1983 claim in the future. In their brief, the Does make the following assertion: "This is not a situation where the [c]court dismissed the constitutional claims without prejudice in anticipation of revisiting the claims after agency fact finding. The [c]court dismissed all of [p]laintiffs' claims with prejudice and entered [f]inal [j]udgment." In fact, the final judgment does not state that the dismissal is "with prejudice," it merely states that the matter was dismissed and that the General Equity Part did not "retain jurisdiction."
We see nothing in the judge's oral decision or in the judgment suggesting that there was an adjudication of the § 1983 claim on the merits or otherwise precluding adjudication of the § 1983 claim once the administrative law issue has been determined. In Archway Programs, supra, 352 N.J. Super. at 425, we discussed the benefit of a trial court's deferring its exercise of jurisdiction to allow an agency to determine issues within its primary jurisdiction, stating "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."
We agree with the Does in one respect: it would have been preferable for the trial judge to have temporarily transferred the matter to the Commissioner, while retaining jurisdiction and placing the matter on the inactive list pending completion of the administrative process. That was essentially the result we ordered on remand in Archway Programs. Id. at 432.
Consequently, although we affirm the judge's deferral of primary jurisdiction to the Commissioner, we remand for entry of an order retaining jurisdiction.*fn1
Affirmed in part, remanded for modification in part.