June 12, 2021

 M.M., on behalf of Minor Child,  v. Board of Education of Lafayette, Sussex County Mary A. Moretti acting pro se12 Meadow Ridge LaneLafayette, NJ 07848973-876-1361maryareese@hotmail.com Respondent Attorney:Marc H. ZitomerSchenck, Price, Smith, King LLP220 Park AvenuePO Box 991Florham Park, NJ 07932 973-539-1000mhz@spsk.com Sydney FinkelsteinOffice of Attorney General25 Market Street PO Box 112Trenton, NJ 08625-0112sydney.finkelstein@law.njoag.gov 

 

APPELLANT INITIAL BRIEF AND APPENDIX

AGENCY DOCKETS:

EDU 5225-20 and 94-5/20

Sat Below:

Hon. Judge Danielle Pasquale and

Judge Jude-Anthony Tiscornia

APPELLATE DOCKET Number:  A-1073-20 T2

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APPELLANT INITIAL BRIEF AND APPENDIX

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TABLE OF CONTENTS

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PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . .

PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . .

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . .

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . .

CONCLUSION  . . . . . . . . . . . . . . . . . . . . . . . .

TABLE OF JUDGEMENTS, ORDERS AND RULINGS BEING APPEALED

                                                           Page

Initial Decision from the ALJ on August 7, 2020           

Final Decision from the Commissioner on November 5, 2020         

TABLE OF APPENDIX

Appendix Document                                       Appendix

                                                        Page No.

TABLE OF AUTHORITIES

Authority                                         Brief Page No.

PRELIMINARY STATEMENT

PROCEDURAL HISTORY

STATEMENT OF FACTS

ARGUMENT

  1. COMMISSIONER ERRED WHEN STATING A FINAL DECISION HAD NOT BEEN MADE IN ORDER TO PROCEED TO THE NEXT ADMINISTRATIVE STEP.

     Ripeness is a justiciability doctrine designed to avoid premature adjudication of abstract disagreements. Abbott Labs. v. Gardner, 387 U.S. 136, 148–49, 87 S.Ct. 1507, 1515, 18 L. Ed.2d 681, 691 (1967). Courts should not interfere with an agency’s administrative decision until the decision has been implemented and its effects felt in a concrete way by the challenging parties. Ibid.; see also 966 Video, Inc. v. Mayor & Twp. Comm. of Hazlet Twp., 299 N.J.Super. 501, 515–16, 691 A.2d 435 (Law Div.1995). Unlike in federal courts, in New Jersey, “any concern about passing judgment on an abstract injury is tempered by the fact that [New Jersey courts] [are] not limited to the case or controversy requirement imposed on the federal courts by way of Article III of the Federal Constitution.” Comm. to Recall Robert Menendez from the Office of U.S. Senate v. Wells, 204 N.J. 79, 102 (2010) (citing In re Application of Boardwalk Regency Corp. for Casino License, 90 N.J. 361, 367, 447 A.2d 1335, appeal dismissed, 459 U.S. 1081, 103 S.Ct. 562, 74 L. Ed.2d 927 (1982)). New Jersey state courts thus have more freedom to decide cases than their federal counterparts, which are limited by constitutionally based ripeness principles.

     To determine if a case is ripe for judicial review, the court must evaluate: 1) the fitness of the issues for judicial decision, and 2) the hardship to the parties caused by withholding court consideration. K. Hovnanian Co. of N. Central Jersey, Inc. v. N.J. Dep’t of Envtl. Prot., 379 N.J.Super. 1, 9, 876 A.2d 847 (App.Div.), certif. denied, 185 N.J. 390, 886 A.2d 661 (2005). As to whether an issue is fit for judicial review, courts must first determine “whether review would require additional factual development.” Id. at 10, 876 A.2d 847. A case is fit for review if the “issues in dispute are purely legal, and thus, appropriate for judicial resolution without developing additional facts.” Comm. To Recall Robert Menendez, supra, 204 N.J. at 99.

     In this instant case, the matter is ripe for an appeal and there is no additional factual development. The principal consideration is whether the record is factually adequate to enable the court to make the necessary legal determinations. The more that the question presented is purely one of law, and the less that additional facts will aid the court in its inquiry, the more likely the issue is to be ripe, and vice-versa. Compare Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 81-82 (1978).

     The Commissioner stated that “the statutory procedures outlined in the Act have not been completed” because “the Board has not issued a decision regarding Petitioner’s HIB claim.” The Commissioner went on to say that “the district’s ABC has made findings, and the superintendent has reported those findings to the Board, but the Act requires those findings to be affirmed, rejected, or modified by the Board, and it is the Board’s decision that is appealable to the Commissioner.” The Commissioner denied my appeal because the Commissioner concluded that the Board had not yet made its decision and thus the issue is not ripe for review

     Nevertheless, the issue herein is ripe for a review on the following grounds. The first is an email from Lafayette Board President Joshua Aikens in response to an email I sent to all of the board on November 18, 2020 asking them the date that they affirmed (adopted) the superintendent’s decision of “no HIB” (Exhibit A). I had previously questioned the superintendent for this information prior to filing my petition on May 5, 2020 (Exhibit B), however my question and email were ignored and went unanswered regarding their procedures and the written documentation as indicated in their board procedures. As exhibited in this November 18, 2020 email, Mr. Aikens confirms “So for your sons case Board was informed during Feb meeting (as per that months mins). March board voted (as per that months mins) & finally the minutes of March meeting are approved during April meeting which was link provided in previous email” The second is the minutes from the Board’s meetings (Exhibit C).        

     The exhibited board meeting minutes from the months listed above and the timeline given by the board president show that the HIB investigations and reports were affirmed unanimously at those meetings supporting Mr. Aikens statements that a decision had been adopted or affirmed by the Board in April 2020 for my son’s HIB, prior to the filing of Petitioner’s petition on May 12, 2020. The third document is yet another affirmation that after I was unable to appeal the decision to the board because the evidence necessary to dispute the investigative report and actually appeal the decision was being blocked by the respondent and the 60 day deadline imposed to request one had expired; that in absence of such appeal the Board’s decision was to affirm the superintendents decision and to vote unanimously to accept it in April 2020. He states again, the board “adopted a resolution to accept the HIB report” (Exhibit D). This constitutes their decision.

     The commissioner is making the assertion that there was no decision; however, the board policy manual of procedures, Mr. Aiken’s email(s) and the board meeting minutes dispute that. When directly asked “on what date does the board consider they have adopted Decision of “no HIB” from the superintendent” and “date you adopted Mrs. Cenatiempo’s determination of ‘not HIB’” Mr. Aiken’s delivered the direct response “so for your son’s case” and “approved during April’s meeting”.

 Therefore, I hereby state that this case is ripe for a review, as the “issues in dispute are purely legal, and thus, appropriate for judicial resolution without developing additional facts”.

  1. IT IS ARBITRARY AND CAPRICIOUS FOR THE COMMISSIONER TO ORDER ME BACK TO AN APPEAL HEARING WITHOUT DUE PROCESS AND ACCESS NEEDED TO PROCEED ADMINISTRATIVELY UNDER NJ ABR  N.J.S.A. 18A:37-13.

    <Intro and Case Law>

     The commissioner is not addressing the issues brought forth in my Opposition to the motion to dismiss regarding a new report with new information, needing not only the previous access to evidence appropriate to go to an appeal but access to new evidence, new dates, new information.  In case law and proceeding involving HIB cases for staff, it clearly states they are entitled to due process in a HIB appeal.  The same applies to students under the “even handedness” of law doctrine. My child deserves due process in a HIB appeal just as teachers and staff are afforded it in defense.

     In Stephen Gibble v. Board of Education of the Hunterdon Central Regional School District 7/13/16,(#254-16) The ALJ found “the issues presented here are whether the conduct engaged in by the petitioner rose to the level of HIB as defined by law, and whether petitioner was afforded adequate due process during the course of the Board’s investigation” and “the Commissioner has recognized that the HIB investigatory requirements outlined in regulations have equal applicability when a bullying charge is directed against a staff member; petitioner had a right to defend the charges against him, but was not afforded the due process rights guaranteed by statute.” It is clear due process is part of the HIB statute.

     In Ruth Young-Edri v. Board of Education of the City of Elizabeth, Union County (174-19), the commissioner states the following “Only with this completeness of information, the court determined, would the hearing contemplated by law afford the family its rightful measure of due process, and satisfy the requirements of N.J.S.A. 18A:37-15(b)(6). The proper remedy under the totality of the circumstances is a remand to the Board so that it may afford Young-Edri a proper measure of due process”.  It is clear due process is provided for under N.J.S.A. 18A:37-15. I could continue to cite case after case with final decisions by the commissioner in all types of HIB cases where due process is clearly afforded in a board level proceeding (such as an appeal) to both students and staff under the law.

     Further from the commissioner in Ruth Young-Edri v. Board of Education of the City of Elizabeth, Union County the commissioner declares “The statute only demands that the hearing be conducted in executive session and that “the board may hear from the school anti-bullying specialist about the incident.” N.J.S.A. 18A:37-15. However, “What is surely required is an opportunity for Young-Edri to fully understand the evidence against her and to present testimony and documents to the Board for its consideration; or, put another way, what is required is the modicum of local due process needed to guard against arbitrary, capricious, or ill-informed Board action”. In this case I allege multiple violations in the HIB procedure and investigation as required by N.J.S.A. 18A:37-15 and I need an opportunity to fully review, understand and document the evidence as it pertains to an appeal of the HIB decision.  This is even more critical because I am in defense in a board appeal on behalf of my minor child who is unable to defend himself.

  1. The Board Did Not Comply With Due Process in Denying Me Access to the Videos.

     The Commissioner stated that the Act does not require trial-type adversary proceedings for board of education hearings regarding HIB allegations. The Commissioner cites to L.K. v. Bd. Of Educ.Of Twp.Of Mansfield, No. A-4290-18T1 (N.J. Super. Nov. 2, 2020) to support this.

     L.K. is not applicable to this case. The parents in L.K. wanted the rights given during long-term suspensions, such as the right to confront and cross-examine the witnesses. The court declines to add those additional rights to this process.

     However, I am not asking for those additional rights. I am not asking for the rights given during long-term suspensions, and I am not asking for the right to confront and cross-examine witnesses. I am not even asking for trial-type adversary proceedings. I am only asking for reasonable access to evidence to document and present video clips that are pertinent to the report and investigation due to my child’s communication disability and his inability to verbalize the events completely.  I am also reasonably asking which report was presented to the board as per their procedure since it is my (or my child’s) burden of proof to prove the investigation and report are false, thus leading to a false conclusion. (NJ ABR  N.J.S.A. 18A:37-13)

  • The Board Did Not Comply With the NJ Public Records Act in Denying Me Access to the Videos

The public policy of the State is “that public records shall be readily accessible for examination by the citizens of this State, with certain exceptions, for the protection of the public interest.” N.J.S.A. 47:1A-1. Student records include “information related to an individual student gathered within or outside the school district and maintained within [it].” N.J.A.C. § 6A:32–2.1.

     OPRA is designed “to maximize public knowledge about public affairs in order to ensure an informed citizenry.”  Mason v. City of Hoboken, 196 N.J. 51, 64, 951 A.2d 1017 (2008).  The Legislature declared that “government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest, and any limitations on the right of access . . . shall be construed in favor of the public’s right of access.” N.J.S.A. 47:1A-1. There is no dispute that the video sought in this case is a “government record.”

I have a statutory right to access the records because the records concern my child. See N.J.A.C. 6A:32–7.5(e); K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337, 357 (N.J. Super. 2011)(“Plaintiff clearly has a right to review school records pertaining to his own children.”)

The Commissioner concedes that the Board is required to provide me with access to my child’s records under N.J. Admin. Code § 6A:32-7.5. (Commissioner Decision, 7, “The Board is not required to provide petitioner with copies of her child’s records, but only access to them…”). However, the Commissioner states that the Board has already satisfied this requirement by providing me with access.

     This is not true. The Board has not provided adequate access to the records. I was provided brief access to only some dates and areas of video, and this was prior to receiving the full investigative report I must dispute. The new report has more allegations against my child actually and accusations of him “seeking attention”, instigating by stopping in from of the perpetrators, and that he was “laughing, smiling, even flirting”. The videos are necessary to disprove those accusations blaming my child for his own harassment. In fact to date I still have not been provided an answer as to which of the three versions of the investigative report I would be disputing in an appeal, the respondent has refused to answer.

     Additionally the “quality” of access given was meaningless for an appeal.  Simply watching a clip play though in improper conditions (lighting, projection, technical issues with pausing among other things) without actually documenting and being able to present clips in defense of the statements in the investigative report is meaningless.  That requires reasonable review and access to document and create clips, I cannot be expected to “memorize” the exact points that are pertinent. 

“A record may be withheld from a parent or from an adult student only when the district board of education obtains a court order or is provided with evidence that there is a court order revoking the right to access.” N.J. Admin. Code § 6A:32-7.6.

Here, there was no court order authorizing the Board to withhold access.

  • The Board Did Not Comply With Common Law in Denying Me Access to the Videos

     In addition to the NJ Public Records Act, I also have a common law right to access the records. “Disclosure of the records to plaintiff may also be required by his common law right of access to public records.” K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337, 357 (N.J. Super. 2011)“The common-law and statutory rights are not mutually exclusive. The two complement each other, together embodying the State’s strong commitment to access to public records.” South Jersey Pub.v. N.J. Expressway, 124 N.J. 478, 489 (N.J. 1991).

Under the common law, a public record is “one that is made by a public official in the exercise of his or her public function, either because the record was required or directed by law to be made or kept, or because it was filed in a public office.” Keddie v. Rutgers, State University, 148 N.J. 36, 49 (N.J. 1997). Public records need not be limited to written records. Video records may be considered public records as well. Convention Center v. South Jersey Pub, 135 N.J. 53, 65 (N.J. 1994)(“We are satisfied that an audio tape or a video tape, prepared to serve as a memorial of something said or done by a public officer or as a memorial of a public proceeding or public business, should be considered a public record under common law.”)

   A public record needs to meet the following criteria. First, “Does a record exist that corresponds to the request?” The answer is yes, this record exists and the respondent has been put on notice to preserve these videos and others dating back to April 16, 2020. Second, “Is the record ‘made or received in the transaction of public business?’” The answer to this again is yes, the cameras are installed and video recorded for the purpose of ensuring student safety, and schools use security cameras for various purposes, all of which are connected with public business.   Third, “Is there an exception that applies?” In this case the answer is no; There is no categorical exception for security video records. Like email, video records may contain various types of content. Whether an exception applies may depend upon the purpose (or purposes) for which the agency created the record.  In this case the school has created these video recording to ensure student safety, and in a Harassment, Intimidation, and Bullying incident, this certainly involves student safety.  

A court must balance the plaintiff’s interest in the information against the public interest in confidentiality of the documents. Some of the considerations that may be examined will include: “(1) the extent to which disclosure will impede agency functions by discouraging citizens from providing information to the government; (2) the effect disclosure may have upon persons who have given such information, and whether they did so in reliance that their identities would not be disclosed; (3) the extent to which agency self-evaluation, program improvement, or other decision making will be chilled by disclosure; (4) the degree to which the information sought includes factual data as opposed to evaluative reports of policymakers; (5) whether any findings of public misconduct have been insufficiently corrected by remedial measures instituted by the investigative agency; and (6) whether any agency disciplinary or investigatory proceedings have arisen that may circumscribe the individual’s asserted need for the materials.” Loigman v. Kimmelman, 102 N.J. 98, 113 (N.J. 1986).

Everything mentioned above applies in my case.  In this case there is significant dispute in events and the investigation with violations clearly proven through this video evidence, events that caused harm to a disabled child. This child, due to their disability specific to communication, is unable to communicate the events properly in this case in his defense. As far as privacy issue, I know and have known each and every student involved in the case and have regular access and interaction with every child on video in the school (due to my higher level of access in my child’s 504 plan and inclusion in school events and outside trips), additionally the videos only show students from far away.  Privacy is moot in this instance. In addition, he is a minor, and is not the one presenting the case upon appeal. Additionally the investigation was flawed, and a significant amount of time has passed with children’s memories affected, use of these videos is tantamount to justice for all parties involved to fully know the events and exactly who was involved. These videos specifically involve a HIB case and disciplinary actions that go on a child’s record permanently under N.J.S.A. 18A:37-13.  I stress again the need for full disclosure for all parties involved.

In K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337, 360 (N.J. Super. 2011), the plaintiff sought records in relation to his HIB claim. He asserted that he “has a significant personal interest in knowing if and in what manner the Defendant’s officials and employees investigated incidents in which his young children were bullied.” The court held that “the Anti–Bullying Act, as an expression of State policy, supports plaintiff’s claim of an important interest in disclosure of the notes to him as a parent.”

My case is similar to K.L. because I also seek the records in relation to my son’s HIB claim, so this court should find that I have an even more “important interest in disclosure” just like the court in K.L. did. My child has communication difficulties that prevent him being able to understand and verbalize certain acts in detail due to his diagnosed disability.  Simply put he cannot always tell us what happened in its entirety, he does however fully understand being harassed and upset and is able to and did communicate that to not one but two teachers who did not act in violation of N.J.S.A. 18A:37-13 and their HIB policy developed from it.

The Board does not have a strong interest in confidentiality. Alternatively these videos should be used as a tool to fairly determine events and who exactly was involved.  It is unprecedented and unusual for a board to be biased and uncooperative to one side in a HIB investigation and appeal.  I have no use for the videos that capture the students other than the “extremely important interest in disclosure I have” to ensure the correct decision is made, the actions and perpetrators are indentified and correctly sanctioned, and this is fully documented for the future safety of my child. That is the exact purpose of NJ ABR and the procedures set forth in it. I have a right to know what happened to my child at school and how it was addressed for his current and future safety at school.

< insert arguments for the 6 points above> in progress

     Therefore, my interest in disclosure is stronger than the Board’s interest in confidentiality.

     However, the Board has not provided adequate access to the records. I was provided brief access to only some dates and areas of video, and this was prior to receiving the full investigative report I must dispute. The new report has more allegations against my child actually and accusations of him “seeking attention”, instigating by stopping in from of the perpetrators, and that he was “laughing, smiling, even flirting”. The videos are necessary to disprove those accusations blaming my child for his own harassment. In fact to date I still have not been provided an answer as to which of the three versions of the investigative report I would be disputing in an appeal, the respondent has refused to answer.

     Additionally the “quality” of access given was meaningless for an appeal.  Simply watching a clip play though in improper conditions (lighting, projection, technical issues with pausing among other things) without actually documenting and being able to present clips in defense of the statements in the investigative report is meaningless.  That requires reasonable review and access to document and create clips, I cannot be expected to “memorize” the exact points that are pertinent.

  1. IT IS A VIOLATION OF RIGHTS UNDER THE 14th AMENDMENT TO THE CONSTITUTION AND PROCEDURAL DUE PROCESS, EVEN-HANDEDNESS OF JUSTICE, AND “FUNDAMENTAL FAIRNESS” TO PREVENT ACCESS AND REASONABLE PRESENTATION OF EVIDENCE.

<Intro and Case Law>

  1. It is also a violation of Civil Rights under ADA and Section 504 of the Rehabilitative Act protecting those with disabilities and providing for use of alternate forms of communication.

<Intro and Case Law>

  1. IT WAS AN ERROR FOR MY CASE TO BE DISMISSED ON PROCEDURAL GROUNDS WHEN I HAD NO ACCESS TO THE FILES TO PROCEED ADMINISTRATIVELY.

<Intro and Case Law>

  • IT WAS AN ABUSE OF DISCRETION TO PREVENT MY FACTS OF THE CASE FROM BEING RECORDED ON RECORD AND TRANSCRIPT FOR CASE TO THE BENEFIT OF ONE SIDE.

<Intro and Case Law>

  • IT WAS AN ABUSE OF DISCRETION AND OUTSIDE THE RULES TO GRANT A SUMMARY MOTION WITHOUT PROPER SERVICE UNDER Rule 4:46-2 OR PROPER NOTIFICATION OF CONVERSION OF A MOTION UNDER Rule 4:6-2 PREVENTING ME FROM OPPOSING IT PROPERLY.

       Motions and conversions under Rules 4:46 and 4:6-2 are to follow the reasonable and clear service and notification to all parties.  “A motion to dismiss based on defense (e), and any opposition thereto, shall be filed and served in accordance with the time frames set forth in R. 4:46-1. If, on a motion to dismiss based on defense (e), matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by R. 4:46, and all parties shall be given reasonable notice of the court’s intention to treat the motion as one for summary judgment and a reasonable opportunity to present all material pertinent to such a motion.”

     Additionally, when a district court decides to convert a motion to dismiss into a motion for summary judgment, it must provide the parties “reasonable opportunity” to present all material relevant to a summary judgment motion. Fed. R. Civ. P. 12(b). The parties can take advantage of this opportunity only if they have “notice of the conversion.” Rose v. Bartle, 871 F.2d 331, 340 (3d Cir. 1989). The notice must be “unambiguous” and must “fairly apprise[ ]” the parties that the court intends to convert the motion. Id. at 341-42.

     The trial court has discretion in granting Respondent’s motion to dismiss or summary Judgment however, such discretion must be exercise judicially and for the interest of justice.

     The court exercise of discretion must not be abused. Abuse of Discretion” is synonymous with a failure to exercise a sound, reasonable, and legal discretion. It is a strict legal term the discretion of the court to grant Respondent’s motion to dismiss or summary Judgment must not be intentionally wrong, bad faith, misconduct, or clearly erroneous conclusion of judgment.

     A discretion exercised to an end or purpose not justified by and clearly against reason and evidence is unreasonable departure from considered precedents and settled judicial custom, constituting error of law.

     A judgment or decision by a judge which has no foundation in fact or in law is a clear “Abuse of Discretion” and it is therefore unreasonable, unconscionable and arbitrary action taken without proper consideration of facts and law pertaining to matter submitted.

     I and almost everyone viewed the court with utmost respect and with an expectation that the court would do very fair and equitable justice to the person coming before it or pleading for genuine redress of any complaint of grievance. The court should always maintain a fair view that should not only do fair justice but the justice should be pronounced in such a manner that a clear message should be made to everyone that justice is made.

     The court is the most sanctified body to deliver justice and has always maintained a very strict view regarding fairness in trial procedures and trial fairness in time pass, it is therefore submitted that in determining the application of restoring the applicant appeal, the court must do so in the interest of justice, equity and good conscience.

     In a section 1983 action,[1] the court liberally construe the pro se litigant’s pleadings and “apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.” the [pro se] Appellants are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution”). Pro se litigants’ labor under the disadvantage of being unable to read procedural rules effectively,[2] the necessity of judicial notification to pro se litigants is more apparent as the pro se litigant is doubly handicapped by his inability to discern his obligations by his misunderstanding of the consequences of the errors in his pleadings. Because Petitioner is a pro se litigant, this Court may consider facts and make inferences where it is appropriate.

  • IT WAS ERROR TO DISMISS MY CASE AND DENY MOTION TO COMPEL BASED ON INCORRECT CONTENTION THAT I WAS DEMANDING COPIES OF THE VIDEO EVIDENCE, I ASKED FOR COPIES FOR A MATTER OF CONVENIENCE IF PERMITTED BY LAW IN THIS MATTER.

     Discovery requests may also be served upon a public agency for access to government records pursuant to N.J. Court Rules, 1969 R. 3:13-3 (2005) and N.J. Court Rules, 1969 R. 7:7-7 (2005). Please note that requests for discovery do not affect a requestor’s right to request the same records under OPRA or Common Law.  This court can only defer to a trial court’s “discovery rulings absent an abuse of discretion or a judge’s misunderstanding or misapplication of the law.” Capital Health Sys., Inc. v. Horizon Healthcare Servs., Inc., 230 N.J. 73, 79-80 (2017) (citing Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)). “[A]ppellate courts must start from the premise that discovery rules ‘are to be construed liberally in favor of broad pretrial discovery’ . . . .” Id. at 80 (quoting Payton v. N.J. Tpk. Auth., 148 N.J. 524, 535 (1997)). Rule 4:10-2(a) reflects this principle:

In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, . . . . It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence . . . . [(Emphasis added).]

     While Petitioner correctly note that the “br[eadth of] modern discovery . . . is not unbridled and not unlimited[,]” Berrie v. Berrie,  188 N.J. Super. 274, 282 (Ch. Div. 1983), the video recording and the required documents at issue are not only highly relevant to this litigation, but also likely to lead to the discovery of admissible evidence.

     FERPA was enacted in part to provide a right of access to student records for parents and students. U.S. v. Miami University, 91 F. Supp. 2d 1132 (S.D. Ohio 2000). It provides that when a student is attending post-secondary education, the rights of the parents are “required of and accorded to the student.” 20 U.S.C. § 1232(d). The Privacy Act provides, in relevant part, Each agency that maintains a system of records shall upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him and upon his request, a person of his own choosing to accompany him, to review the record and have a copy made of all or any portion thereof in a form comprehensible to him. 5 U.S.C. § 552a(d)(1).

     “Student records” include “information related to an individual student gathered within or outside the school district and maintained within [it].” N.J.A.C. § 6A:32-2.1. Any information made or maintained for second-party review falls within this definition and, thus, the statute’s purview.

     Therefore, Pursuant to its statutory authority, “[e]ach district board of education shall compile and maintain student records and regulate access, disclosure, or communication of information contained in educational records in a manner that assures the security of such records—-” N.J.A.C. § 6A:32-7.1(b). “In providing access to school records in accordance with N.J.A.C. § 6A:32-7.5, school districts must also comply with the requirements of OPRA and FERPA” (internal citation omitted). See, K.L. v. Evesham Twp. Bd. OfEduc., 423 N.J.Super. 337, 365, 32 A.3d 1136 (App.Div.2011), certif. denied, 210 N.J. 10840 A.3d 732 (2012).

     Chief school administrators, or their designees, are charged with maintaining the security of student records and developing procedures to limit access to authorized persons only. See N.J.A.C. § 6A:32-7.4(a). A review of the fifteen enumerated persons and entities qualifying as “authorized” under the regulation reveals that I, the petitioner in this case, satisfy one of them, I am the parent of the child. See N.J.A.C. § 6A:32-7.5(e). As stated above, the status of the requestor and reasons for the request are generally irrelevant to an individual’s right to access records under OPRA. See K.L., supra, 423 N.J.Super. at 356, 32 A.3d 1136 (citing Kovalcik v. Somerset Cty. Prosecutor’s Office, 206 N.J. 581, 591, 21 A.3d 1142 (2011) and Burnett v. Cty. of Bergen, 198 N.J. 408, 435, 968 A.2d 1151 (2009)). “Under State Department of Education regulations, however, school officials may only disclose student records to designated organizations, agencies, or individuals.” Id. at 356-57, 32 A.3d 1136. In K.L., the requestor was a parent of the children whose school records were sought, which gave him a statutory right to access them. Id. at 345, 32 A.3d 1136.6 Therefore, I, in this instant case, should be given access to my child’s record or to any information pertaining to my child which is contained in the system, permit me and upon my request, a person of my own choosing to accompany me, to review the record and have a copy made of all or any portion thereof in a form comprehensible and “meaningful” to me. See, 5 U.S.C. § 552a(d)(1).

     Furthermore, the touchstone of all civil discoveries is that the parties are entitled to unrestricted access to all sources of potentially relevant information. “Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.” Hickman v. Taylor, 329 U.S. 495, 507- 508 (1947).

     Therefore, discovery should ordinarily be allowed as relevant unless it is clear that the information sought can have no possible bearing upon the subject matter of the action. Snowden v. Connaught Laboratories, Inc., 137 F.R.D. 325, 329 (D. Kan. 1991) (citing, Hoeme v. Golden Corral Corp., No. 89-1530 (D. Kan. June, 1990)) Gagne v. Reddy, 104 F.R.D. 454, 456 (D. Mass. 1984) (citing, Miller v. Doctor’s General Hospital, 76 F.R.D. 136, 139 (W.D. Okla. 1977)); Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 296 (E.D. Pa. 1980).

  • IT WAS PREJUDICIAL TO OVERLOOK MATERIAL FACTS THAT THERE WAS A NEW REPORT WITH NEW ALLEGATIONS THAT NECESSITATED THE NEED FOR NEW DATES TO ACCESS AND DOCUMENT.

<Intro and Case Law>

  1. It was prejudicial to disregard all of my proofs offered in my Answer to the motion to dismiss.

<Intro and Case Law>

  1. IT WAS ERROR AND/OR PREJUDICIAL TO DISREGARD MULTIPLE PLEADINGS SUCH AS A MOTION TO AMEND, DISQUALIFY, STRIKE AND VACATE INJUSTLY AFFECTING THE PROGRESSION OF MY CASE AND PREVENTING ME FROM KNOWING HOW TO ACT ON MY CASE.

     The ALJ dismissed my claims without regards to the liberal treatment of pro se pleadings and actual “no treatment” or decision at all which significantly affected my case and knowing how to proceed or act on my case. Unlike Respondent, I defend this appeal pro se, I filed the Petition and attempted to answer the motions filed by Respondent and plead my case with motions in support.

     Therefore, this court must be reminded that I bring this case pro se, the Court must construe my filings “liberally” and interpret them “to raise the strongest arguments that they suggest.” Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520–521 (1972), the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or the litigant’s unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982);

      In a section 1983 action,[3] the court liberally construe the pro se litigant’s pleadings and “apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.” the [pro se] Appellants are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution”). Pro se litigants’ labor under the disadvantage of being unable to read procedural rules effectively,[4] the necessity of judicial notification to pro se litigants is more apparent as the pro se litigant is doubly handicapped by his inability to discern his obligations by his misunderstanding of the consequences of the errors in his pleadings. Because Petitioner is a pro se litigant, this Court may consider facts and make inferences where it is appropriate.

     CPLR § 5501(a) defines the scope of review from a final judgment to include: any non-final judgment or order which “necessarily affects” the final judgment. According to a test suggested by Professor David Siegel, the order “necessarily affects” the final judgment if reversing it would require a reversal or modification of the final judgment. The phrase “necessarily affects” has been the subject of multiple Court of Appeals decisions: Oakes v. Patel, 20 N.Y.3d 633, 988 N.E.2d 488, 965 N.Y.S.2d 752 (2013): A medical malpractice case in which a defendant’s motion to amend, if granted, would have added a new defense of release to the case. The other defendants argued that the new defense would have significantly changed the case’s result. The Court of Appeals held that “when an order granting or denying a motion to amend relates to a proposed new pleading that contains a new cause of action or defense, the order necessarily affects the final judgment,” meaning that the denial of the motion to amend was reviewable.

     Additionally, Sigmund Strauss, Inc. v. East 149th Realty Corp., 20 N.Y.3d 37, 980 N.E.2d 483, 956 N.Y.S.2d 435 (2012): The case involved the right to a commercial leasehold. Defendant appealed a judgment declaring plaintiff the lawful tenant of the subject property. The question was whether that appeal brought up for review two non-final orders, one dismissing defendants’ counterclaims and third-party complaint, and the other denying defendants’ motion to amend their answer. The Court of Appeals addressed only the first order, holding that “because Supreme Court’s dismissal of the counterclaims and third-party claim necessarily removed that legal issue from the case (i.e., there was o further opportunity during the litigation to raise the question decided by the prior non-final order), that order necessarily affected the final judgment.”

     In my case a Motion to Amend my Petition was filed approximately one month after my original petition. This motion to amend requested additional and different relief based on the circumstances that had come about (escalated non cooperation and hostility from the respondent). Granting or denying this motion as I had expected significantly affected my case and what and how I was to defend it. The motion was ignored.  This unknown (what I was defending or actually petitioning at that point in time) and how it affected my case is illustrated in the 7-14-20 audio and transcript when the judge herself contradicts what she is deciding to keep me from knowing how to defend my case.  I have pointed out in my Motion to Disqualify and recent Motion to Settle the Transcript that the judge flipped back and forth between my original petition and what I asked for in my amended one while I never had an actual answer to my motion, but then refused to clarify it for me after those contradictions. The ALJ’s initial decision and refusal to grant or deny my Motion to Amend affected the final judgment by the commissioner.

     Next, an opposition and a Motion to Disqualify the judge was filed shortly after the 7-14-20 conference.  The Motion was never granted or denied either, but the judge was abruptly changed the afternoon I filed it without explanation. This motion supports my claim of prejudice and abuse of discretion.

     The next motion that I filed to my case that was disregarded affecting the progression of my case was a Motion to Strike.  In this motion I asked to strike multiple things inappropriate to that conference and the call or transcript itself.  This motion was also not granted and denied.  I filed oppositions to not having my motions heard but there was no response to them. After multiple attempts I was told the motions “would be decided at final decision”.  I again objected to now decisions before the final decision, as again it prevented me from acting on my case.  In the final decision the motion to strike was only partially addressed, specifically leaving out this conference and transcript and my request to strike it.

     Another motion that was disregarded that had significant impact on my case was the Motion to Vacate the order from the ALJ.  When I read the ALJ’s initial decision, it clearly states “respondent requested”, “motion for summary”, “summary judgment granted”.  I was confused as I was never served a motion for summary judgment from my adversary for me to oppose. I asked the respondent who denied he requested or filed a motion.  Upon further insistence for an answer, respondent finally responded that he “presumed” judge used a rule to convert a motion. He refused to answer whether he “requested summary” however as indicated in the Motion to Vacate. There was no such notification to any parties plus the judge’s order is not citing converting the motion.  This very specifically prevented me from opposing the motion properly under Rules 4:46 and 4:6-2 and Fed. R. Civ. P. 12(b). I objected to the Motion to Vacate being disregarded and specifically requested it be heard.  I was told it would be decided again at final decision time but there is no such decision in the final decision as I was told and the motion and valid points raised were disregarded affecting my case.

CONCLUSION

Respectfully submitted,

Mary Ann Moretti


[1]Even though Appellant does not specifically mention 42 U.S.C. § 1983, which is the Civil Rights Act, in the Complaint, it is clear to this Court that Appellant is seeking to vindicate his federal Constitutional rights. However, because Appellant does not have a cause of action directly under the Constitution of the United States, nor does he identify another source of a federal right alleged to have been violated or another basis for federal jurisdiction, a liberal reading of the Complaint requires the Court to construe the Complaint as one invoking the Court’s federal question jurisdiction pursuant to 42 U.S.C. § 1983.

[2] , See 1980 Aldisert Report, supra note 12, at 64 (pro se litigants not expected to understand rules).

[3]Even though Appellant does not specifically mention 42 U.S.C. § 1983, which is the Civil Rights Act, in the Complaint, it is clear to this Court that Appellant is seeking to vindicate his federal Constitutional rights. However, because Appellant does not have a cause of action directly under the Constitution of the United States, nor does he identify another source of a federal right alleged to have been violated or another basis for federal jurisdiction, a liberal reading of the Complaint requires the Court to construe the Complaint as one invoking the Court’s federal question jurisdiction pursuant to 42 U.S.C. § 1983.

[4] , See 1980 Aldisert Report, supra note 12, at 64 (pro se litigants not expected to understand rules).

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