June 12, 2021
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
APPELLATE DOCKET Number: A-1073-20 T2
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
_____________________________________________________________________________
APPELLANT’S INITIAL BRIEF AND APPENDIX
_____________________________________________________________________________
TABLE OF CONTENTS
Page
TABLE OF JUDGEMENTS, ORDERS AND RULINGS BEING APPEALED
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.
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
TABLE OF AUTHORITIES
Authority Brief Page No.
Cases
Video, Inc. v. Mayor & Twp. Comm. of Hazlet Twp., 299 N.J.Super. 501, 515–16, 691 A.2d 435 (Law Div.1995) 14
Abbott Labs. v. Gardner, 387 U.S. 136, 148–49, 87 S.Ct. 1507, 1515, 18 L. Ed.2d 681, 691 (1967) 14
Baxter v. Fairmont Food Co., 74 N.J. 588, 595-601 (1977). 38
Berrie v. Berrie, 188 N.J. Super. 274, 282 (Ch. Div. 1983) 34
Boag v. MacDougall, 454 U.S. 364 (1982) 39
Brady v. Board of Review, 152 N.J. 197, 210-211 (1997) 38
Burnett v. Cty. of Bergen, 198 N.J. 408, 435, 968 A.2d 1151 (2009) 35
Capital Health Sys., Inc. v. Horizon Healthcare Servs., Inc., 230 N.J. 73, 79-80 (2017) 33
Carrino v. Novotny, 78 N.J. 355, 360 (1979) 38
Comm. to Recall Robert Menendez from the Office of U.S. Senate v. Wells, 204 N.J. 79, 102 (2010) 14
Compare Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 81-82 (1978). 15
Convention Center v. South Jersey Pub, 135 N.J. 53, 65 (N.J. 1994) 21
Dolson v. Anastasia, 55 N.J. 2 , 6-8 (1969) 38
Frantz v. Frantz, 256 N.J. Super. 90, 93 (Ch. Div. 1992) 26
Gagne v. Reddy, 104 F.R.D. 454, 456 (D. Mass. 1984) 36
Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App. Div.), certif. denied 144 N.J. 174 (1996) 29
Gittleman v. Central Jersey Bank & Trust Co 30
Goodyear Tire and Rubber Co. v. Kin Properties, Inc., 276 N.J. Super. 96, 106, 647 A.2d 478 (App. Div.), certif. denied, 139 N.J. 290 (1994) 29, 36
Haines v. Kerner, 404 U.S. 519, 520–521 (1972) 38
Hickman v. Taylor, 329 U.S. 495, 507- 508 (1947). 35
Hoeme v. Golden Corral Corp., No. 89-1530 (D. Kan. June, 1990) 36
In re Application of Boardwalk Regency Corp. for Casino License, 90 N.J. 361, 367, 447 A.2d 1335 14
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) 14
K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337, 357 (N.J. Super. 2011) 19, 21, 23
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. 108, 40 A.3d 732 (2012). 34
Keddie v. Rutgers, State University, 148 N.J. 36, 49 (N.J. 1997) 21
Kovalcik v. Somerset Cty. Prosecutor’s Office, 206 N.J. 581, 591, 21 A.3d 1142 (2011) 35
L.K. v. Bd. Of Educ.Of Twp.Of Mansfield, No. A-4290-18T1 (N.J. Super. Nov. 2, 2020) 18
Lasky v. Moorstown Tp., 42 A.3d 212, 216-17 (N.J. Super. App. Div. 2012) 28
Mason v. City of Hoboken, 196 N.J. 51, 64, 951 A.2d 1017 (2008) 19
Miller v. Doctor’s General Hospital, 76 F.R.D. 136, 139 (W.D. Okla. 1977) 36
Mucci v. Rutgers, No. 08-4806, 2011 WL 831967, at *21 (D.N.J. Mar. 3, 2011) 28
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306. 26, 28, 37
New Directions Treatment Serv. v. City Of Reading, 490 F.3d 293, 300-01 n.4 (3d Cir. 2007 28
NJ ABR N.J.S.A. 18A:37-13 19
Ozolins v. Ozolins, 308 N.J. Super. 243, 249 (App. Div. 1998 26
Payton v. N.J. Tpk. Auth., 148 N.J. 524, 535 (1997) 33
Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011) 33
Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 296 (E.D. Pa. 1980) 36
Rose v. Bartle, 871 F.2d 331, 340 (3d Cir. 1989). 31
Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484, 323 A.2d 495 (1974) 29, 36
Ruth Young-Edri v. Board of Education of the City of Elizabeth, Union County (174-19) 17, 18
Serenity Contracting v. Fort Lee, 306 N.J. Super. 151, 29
Snowden v. Connaught Laboratories, Inc., 137 F.R.D. 325, 329 (D. Kan. 1991) 36
South Jersey Pub.v. N.J. Expressway, 124 N.J. 478, 489 (N.J. 1991). 21
State v. Aguirre, 287 N.J. Super. 128, 133 (App. Div. 1996). 36
Stephen Gibble v. Board of Education of the Hunterdon Central Regional School District 7/13/16,(#254-16) 17
tate v. Burnett, 198 N.J. Super. 53, 58 (App.Div. 198 4), certif. denied, 101 N.J. 269 (1985) 26
U.S. v. Miami University, 91 F. Supp. 2d 1132 (S.D. Ohio 2000) 34
Wright v. Bernstein, 23 N.J. at 294; Panko v. Flintkote Co., 7 N.J. 55, 61 (1951). 38
Statutes
CPLR § 5501(a) 39
N.J. Admin. Code § 6A:32-7.5 19
N.J. Admin. Code § 6A:32-7.6. 20
N.J.A.C. § 6A:32–2.1. 19
N.J.A.C. § 6A:32-2.1. 34
N.J.A.C. § 6A:32-7.1(b). 34
N.J.A.C. § 6A:32-7.4(a). 35
N.J.A.C. § 6A:32-7.5 34
N.J.A.C. § 6A:32-7.5(e). 35
N.J.A.C. 6A:32–7.5(e) 19
N.J.S.A. 18A:37-13 23
N.J.S.A. 18A:37-15(b)(6). 17
N.J.S.A. 47:1A-1 19
Section 504 of the Rehabilitative Act 27
Title II of the ADA 27
Rules
.J. Court Rules, Rule 2:10-22 37, 38
Fed. R. Civ. P. 12(b) 31
N.J. Court Rules, 1969 R. 3:13-3 (2005) 33
Rule 4:10-2(a) 33
Rules 4:46 and 4:6-2 30
Constitutional Provisions
20 U.S.C. § 1232(d). 34
29 U.S.C. § 794. 27
42 U.S.C. § 12132 27
5 U.S.C. § 552a(d)(1). 34
U.S. Const. amend. XIX 26
PRELIMINARY STATEMENT
This case involves the bullying and harassment of Appellant’s child by his schoolmates. Appellant’s child is disabled with a communication problem, resulting in difficulty with verbalization and details. Upon an investigation, the school erroneously held that there was no Harassment, Intimidation or Bullying (hereinafter, “HIB”). There was video of the incidents, which Appellant saw on request before she decided to appeal to the School Board. However, the Board refused to grant Appellant access to the video evidence, which brought out the reality of what exactly happened.
Accordingly, Appellant filed a dispute with the Agency: the Commissioner of Education through the Controversies and Disputes, where Appellant claimed access to the video evidence. Consequently, Appellant’s case was transmitted to the OAL (office of Administrative Law) to decide on the matter of law pertaining access to the video evidence. The ALJ dismissed Appellant’s case.
PROCEDURAL HISTORY
This matter was properly brought to this Honorable Court vide Appellant’s Notice of Appeal dated December 18, 2020. Appellee has since filed a Cross Motion to Remand that is replete with inaccuracies, misstatements, and misrepresentations. Appellant opposed Appellee’s Motion to Remand vide Appellant’s Opposition to Motion to Remand.
Appellant now files this Appeal Brief.
STATEMENT OF FACTS
Afterschool, on January 15, 2020, Appellant’s child reported to Appellant in a breakdown
that he had been bullied by a number of his classmates for an extended period of time. Appellant
instructed him to report it to his teachers immediately the next morning. Appellant’s son and a
student (“A.M.”) who witnessed the acts of Harassment, Intimidation, and Bullying (hereinafter,
“HIB”) over days then reported the HIB to two teachers on January 16, 2020. First, they reported together in the morning to the classroom teacher who did not act under the policy but instead told Appellant’s child and witness “A.M.” to report it to a different teacher. Later that day, Appellant’s child and “A.M.” did indeed report the HIB to the (different) gym teacher. Again, no action was taken as per their policy and NJ-ABR N.J.S.A. 18A:37-13. When Appellant picked her son up the afternoon of January 16, Appellant asked if he had reported the HIB because Appellant had not heard anything from the school regarding the incident yet. He said no they did nothing.
On January 17, 2020, after no follow up from the school after Appellant’s son confirmed that he and “A.M.” told two teachers Appellant then contacted the HIB coordinator (Gerard Fazio) in the morning to find out the procedure to act herself and report it since no one was taking action. Appellant was told to email him the “problem” and he again made no mention of my son and the other student’s previous report. Appellant then submitted a detailed report early
afternoon January 17, 2020, of her son’s statements at the time. At pickup January 17, Appellant
again asked her son “did anyone talk to you and help you”? He said no. Then he said he was bullied again that day (January 17) and that student witness “B.H” witnessed and told him who
was doing it (it was acts from behind and behind his back so he couldn’t figure out exactly who it was at times).
After an investigation was eventually conducted three days after the report of HIB by Appellant’s son and other witnesses, it was determined there was no HIB February 20, 2020. Appellant was provided a report on that day with a missing page, then when she received the missing page that day or the following one, the page had accusations about the events and her son’s behavior, which were not true. It was also missing the student witnesses on behalf of Appellant’s son and one that reported it with him. Some of the HIB acts (there were more than just one area and time as reported by my son) were in the gym. So, Appellant asked to see some video based on the short report she got just to verify events and decide if she did need to appeal the decision or not to be fair to all parties. Appellant’s son has known and diagnosed communication disabilities that prevents him from speaking up and providing details like his peers. It took 5 days of bullying before he could even speak up to Appellant as his parent. Everything was agreeable and amicable at this point.
Appellant picked just a few dates of video based on the short report and her son’s statements to review with the superintendent and she began watching some clips over a few scheduled days due to timing and other technical issues at the beginning of March 2020. While watching some short clips Appellant asked the superintendent more questions about the investigation particularly why the student witnesses on behalf of her son were “missing”, among
other things Appellant started to see in the clips from the (two)reports she was given. The superintendent then pulled out what now would be a third version or report to read to Appellant some statements to provide some answers. Appellant immediately asked for a copy of that report to which she replied, “I’ll get it to you as soon as possible”. Appellant had one final day of video she had requested to see, again based on the short HIB report we were given after that meeting.
Appellant came back into the school to review the final day and it was this video that revealed blatant acts of HIB, clearly disputed the statements by the accused, and supported what Appellant’s son had reported to her. It also showed at least one part of the report was falsified.
Upon seeing this, instead of the superintendent speaking about it and discussing changing the
report when Appellant asked why none of what we just saw together was not in the report (which she has the power to do without an appeal), she literally changed the whole demeanor of her communication and interaction with Appellant. Appellant became upset over what she saw and
left the meeting. A few days after reporting and discussing with her husband she knew she had to appeal and politely indicated to Mrs. Cenatiempo in email on March 17, 2020 and asked that her husband and her be able to come back in to review and document and the videos because they decided they needed to appeal. They (Appellant and her husband) were met with a hostile email from their attorney falsely accusing them and completely refusing to cooperation. Notably, the attorney “prohibiting” them from speaking to the superintendent at all. Appellant’s child has
a 504 plan that is not an option. Appellant cannot be “forbidden” from talking to the persons involved in the care of her child.
Appellant continued to ask for the other report over approximately two weeks and was told she would have it “as soon as possible”. They continued to refuse her access or answer any questions in cooperation with the HIB investigation and what happened to her child. Finally, on
April 10, 2020 a month after she watched some short video clips and her request for the report, she was given a complete report. Appellant and her husband were alarmed to see that the report now had multiple falsified statements about events and their son’s actions and “role” in the HIB.
Specifically, they accused him of “instigating” or “seeking” the abuse and their descriptions to
his reactions to the acts, the frequency of the acts “admitted”. The student witnesses (one seen on
a video clip they are preventing access to) that reported the HIB twice with Appellant’s son was removed. Appellant’s son’s witnesses were removed. One was seen on video yet was “removed” from the investigation. They also blocked further access so Appellant could even verify the true extent of actions or non-actions.
After receiving this report, Appellant immediately said that this new report had new information and Appellant needed access to new video and dates and requested access to those dates despite them still denying us any access at all. Appellant also asked the superintendent to tell me “which” report was presented to the board as per the policy. I needed to know “what”, or “which” report Appellant would need to dispute in a board appeal logically since Appellant was given “three versions”. Appellant was again refused an answer or any cooperation to be able to fairly prepare for a board appeal.
While Appellant was being denied access to evidence or information about the investigation to go to a board appeal, the district repeatedly reminded her and warned her in letter and email that she had 60 days to request the appeal to the board as per their policy. Appellant responded back each time that she needed access to evidence to fairly support her son’s case in the appeal and dispute the report as it was her burden of proof to show the investigation was improper or flawed leading to improper decision, before she could schedule an
appeal. She reiterated her child cannot verbalize what is in the video and cannot verbalize details overally due to his disability. And that those videos were his “voice”, and he is protected because of his disabilities. This is violation of his rights. They continued to refuse to comply. They provided the date of the deadline to which she could not make because they were still refusing access. Appellant could not go to an appeal without evidence to dispute the report simply. She
has no defense. Her son is not there to speak for himself, nor can he do so due to his disability and Appellant also represents him as a minor. Appellant’s deadline passed with a denial and/or no response from the district to provide to the new video and review any documentation of all the video pertinent to her child and the HIB and answer, which report she would be defending.
On May 12, 2020, after multiple attempts to reach out to the NJDOE and the county superintendent’s office for help in the matter to avoid filing or missing her deadline to file if she
had to, and continued refusals to cooperate without bias from the school district, Appellant filed a petition to the commissioner, not “to appeal the Anti-Bullying Coordinator’s (“ABC”) finding
that her son was not the victim of HIB” as all parties have been presenting, but for “access to videos to present at an appeal” (Exhibit A) APa15 1. Consequently, the Office of Controversies
and Disputes (the commissioner) reviewed the case and accepted it as a “contested” or disputed case and subsequently transmitted the case to the OAL for a hearing under the matter of law “Petitioner seeks access to video recordings and in-person appeal before the BOE regarding a harassment, intimidation and bullying (HIB) decision” (Exhibit B) Apa18.
After three phone calls with two judges (one involved a Motion to Disqualify on July 17,
2020 to prevent Appellant from placing her statements on the call she was recording for the record and for preference to the respondent in the case) to “discuss the case” in which Appellant (and her husband who was on the calls) was told a “zoom hearing would be scheduled” to decide Appellant’s access. Appellant was not granted a hearing as requested to argue her case, to her surprise and confusion. Instead, on August 7, 2020, Appellant received a decision from the second judge (Tiscornia) suddenly dismissing her petition, indicating the respondent “motioned” and requested a summary and it was granted. Appellant asked the respondent for a copy of the Motion, but the respondent denied motioning or requesting what the judge indicates in the order,
to dismiss Appellant’s Petition for Access to the videos under due process. On August 31, 2020, after attempts to resolve the true facts with the respondent and agency in regard to the “existence” of the motion indicated in the order, Appellant filed Motions to Vacate the order and a Motion to Strike the information submitted by the respondent. The motions were not reviewed and decided despite Appellant’s requests for a grant or denial unjustly affecting Appellant’s case.
On November 7, 2020, the commissioner adopted the initial decision of the ALJ, modifying it slightly to fit the erroneous statement of facts offered by stating that Appellant was appealing the HIB directly to the commissioner as her dispute when the record, petition, and transmittal sheet indicates otherwise. Appellant was asking the commissioner and the courts to
resolve her dispute with the school district to grant fair access for an appeal, at any level, whether it be an appeal before the Lafayette Township School Board, the Commissioner, or ultimately higher courts if necessary.
On or about April 29, 2021, Appellant filed a Motion to Supplement the records to include documents in the case that were not included in the agency record before the Honorable Court. Respondent filed a Cross Motion for Remand in response to Appellant’s Motion to Supplement the Records, which Cross Motion Appellant vehemently opposes herein.
ARGUMENT
I. 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 Appellant’s 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 Appellant 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 C). Appellant had previously questioned the superintendent for this information prior to filing Appellant’s petition on May 5, 2020 (Exhibit D), however Appellant’s 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 month’s 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 E).
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 Appellant 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 superintendent’s 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 F). 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, Appellant hereby states 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”.
II. IT IS ARBITRARY AND CAPRICIOUS FOR THE COMMISSIONER TO ORDER APPELLANT BACK TO AN APPEAL HEARING WITHOUT DUE PROCESS AND ACCESS NEEDED TO PROCEED ADMINISTRATIVELY UNDER NJ ABR N.J.S.A. 18A:37-13.
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. Integral to due process is the ability to present evidence in support or 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, 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”.
Ruth Young-Edri, (174-19). .
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.
- The Board Did Not Comply With Due Process in Denying Appellant 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, Appellant is not asking for those additional rights. She is not asking for the rights given during long-term suspensions, and she is not asking for the right to confront and cross-examine witnesses. Appellant is not even asking for trial-type adversary proceedings. She is only asking for reasonable access to evidence to document and present video clips that are pertinent to the report and investigation due to Appellant’s child’s communication disability and his inability to verbalize the events completely. Appellant is also reasonably asking which report was presented to the board as per their procedure since it is Appellant (or Appellant’s 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 Appellant 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.”
Appellant has a statutory right to access the records because the records concern her 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 Appellant with access to her 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 Appellant with access.
This is not true. The Board has not provided adequate access to the records. Appellant was provided brief access to only some dates and areas of video, and this was prior to receiving the full investigative report Appellant must dispute. The new report has more allegations against Appellant’s 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 Appellant’s child for his own harassment. In fact, to date Appellant still has not been provided an answer as to which of the three versions of the investigative report Appellant 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 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, Appellant 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 Appellant Access to the Videos
In addition to the NJ Public Records Act, Appellant 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.”
Appellant’s case is similar to K.L. because Appellant also seeks the records in relation to her son’s HIB claim, so this court should find that Appellant has an even more “important interest in disclosure” just like the court in K.L. did. Appellant’s 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 Appellant 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. Appellant has 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 identified 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. Appellant has a right to know what happened to her child at school and how it was addressed for his current and future safety at school.
To address the balance of Appellant’s interest in the information against the public interest in confidentiality of the documents versus the Board’s interest in confidentiality, Appellant contends that her case warrants access under the common law access principle because:
- Disclosure will not impede agency functions by discouraging citizens from providing information to the government.
- Any privacy issue can easily be addressed with software to blur faces of those uninvolved.
- Decision or policy making can only be improved by fully investigating the matter and events under NJ ABR N.J.S.A. 18A:37-13.
- Disclosure would remove and clarify most disputes regarding the actions of the “what and whom” and the actions of the investigation, as it is clearly seen on video instead of a subjective report by the superintendent.
- The Board and the superintendent are literally “refusing to see evidence” of their action(s) and/or inaction(s), which are not for the benefit of an innocent child whom they pledged to protect under oath as board members. Thus, blocking access to the records of what happened further shows their error. These videos not only dispute the accused statements, but they also dispute the staff statements and the actual actions and events. The Board should be investigating if the procedures they set forth in their policy are being fairly carried out by their hired staff to make the necessary policy for remedial measures.
- There are no agency disciplinary or investigatory proceedings that have arisen, which may circumscribe the Appellant’s need for the materials.
Therefore, Appellant’s interest in disclosure is stronger than the Board’s interest in confidentiality. However, the Board has not provided adequate access to the records. Appellant was provided brief access to only some dates and areas of video, and this was prior to receiving the full investigative report Appellant must dispute. The new report has more allegations against Appellant’s 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 Appellant’s child for his own harassment. In fact, to date Appellant still has not been provided an answer as to which of the three versions of the investigative report Appellant 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 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, Appellant cannot be expected to “memorize” the exact points that are pertinent.
III. 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.
Procedural due process concerns the procedures that must be followed before an individual is deprived of life, liberty, or property. See U.S. Const. amend. XIX. Accordingly, the key question to ask in this context is: What procedure(s) satisfies due process?
Due process requires, at a minimum: (1) notice; (2) an opportunity to be heard; and (3) an impartial tribunal. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306. “The essence of due process certainly requires that the parties have adequate notice and opportunity to know the … evidence and to present evidence in argument and response.” State v. Garthe, 145 N.J. 1, 8, 678 A.2d 153 (1996).
“[a] trial is a search for truth and … rules and procedures should be sufficiently flexible to accommodate that search. See State v. Burnett, 198 N.J. Super. 53, 58 (App.Div. 198 4), certif. denied, 101 N.J. 269 (1985). Accordingly, “‘it would be unreasonable to place the burden of proof on a party not having access to the evidence necessary to support that burden of proof.'” Ozolins v. Ozolins, 308 N.J. Super. 243, 249 (App. Div. 1998) (quoting Frantz v. Frantz, 256 N.J. Super. 90, 93 (Ch. Div. 1992)). New Jersey courts have in other contexts firmly recognized the equitable principle that when evidence is primarily in the hands of one party, the court may impose a burden of proof upon that party to supply such evidence. Ozolins, 308 N.J.Super. at 248–49.
It follows; due process is not just for criminal cases and trial-like proceedings. Procedural due process under the 14th Amendment to the Constitution states “due process requires that the procedures by which laws are applied must be evenhanded, so that individuals are not subjected to the arbitrary exercise of government power”. Appellant’s child, and Appellant, should be afforded the procedural due process right of being able to present evidence in support and/or defense. That requires access to the evidence and way in which to reasonably present such evidence. Accordingly, the Respondent’s refusing to allow Appellant access to the records violates Appellant’s due process rights.
- 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.
ADA Title II provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. RA section 504 provides that
[n]o otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance
29 U.S.C. § 794.
In order to state a claim under both Section 504 of the Rehabilitative Act and Title II of the ADA, an individual must allege facts showing that the individual “(1) has a disability; (2) was otherwise qualified to participate in a school program; and (3) was denied the benefits of the program or was otherwise subject to discrimination because of her disability.” Chambers v. Sch. Dist. Of Phila. Bd. Of Educ., 587 F.3d 176, 189 (3d Cir. 2009). Prong three of the said provision requires the disability to be the sole cause of denial of benefits or discrimination and that the disability be the “but for” cause of the denial of benefits or discrimination. New Directions Treatment Serv. v. City Of Reading, 490 F.3d 293, 300-01 n.4 (3d Cir. 2007).
Notably, New Jersey courts apply federal standards regarding disability discrimination claims. Mucci v. Rutgers, No. 08-4806, 2011 WL 831967, at *21 (D.N.J. Mar. 3, 2011) (“New Jersey courts therefore apply the standards developed under the ADA when analyzing NJLAD claims”); see also, Lasky v. Moorstown Tp., 42 A.3d 212, 216-17 (N.J. Super. App. Div. 2012) (applying ADA Title II standards to NJLAD discrimination claims).
Appellant’s child is disabled and protected under ADA and Section 504. His disability specifically involves communication. He should be permitted to defend himself with alternate forms of communication and these videos certainly fit the criteria. If he is unable to verbalize in detail exactly what was happened after over a week went by does not mean it did not happen. Additionally, some of the acts were done behind his back preventing him from knowing exactly who and what at times. If there is video that actually shows what happened and who was involved blocking that evidence violates his rights to defend himself or support his version of events, he was unable to fully communicate in a stressful and brief interview after a week had passed further affecting his memory and ability to communicate the events.
- It was an error for Appellant’s case to be dismissed on procedural grounds when Appellant had no access to the files to proceed administratively.
Due process requires, at a minimum: (1) notice; (2) an opportunity to be heard; and (3) an impartial tribunal. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306. “The essence of due process certainly requires that the parties have adequate notice and opportunity to know the … evidence and to present evidence in argument and response.” State v. Garthe, 145 N.J. 1, 8, 678 A.2d 153 (1996).
Appellant contends that the dismissal of her case on procedural grounds violated her due process rights because she was not granted an opportunity to canvass pertinent evidence, which was withheld by the Respondent. Appellant made reasonable effort to obtain the said evidence to no avail. Accordingly, Appellant was seeking the Court’s help for an Order to access the said records. It follows; the dismissal of Appellant’s case has quashed Appellant’s hopes in finding redress for her child.
IV. IT WAS AN ABUSE OF DISCRETION TO PREVENT APPELLANT’S FACTS OF THE CASE FROM BEING RECORDED ON RECORD AND TRANSCRIPT FOR CASE TO THE BENEFIT OF ONE SIDE.
Administrative agencies and other governmental bodies, as well as courts, have a great deal of discretion in many areas. Such exercises of discretion “are entitled to respectful review under an abuse of discretion standard.” Serenity Contracting v. Fort Lee, 306 N.J. Super. 151,
159 (App. Div. 1997).
The abuse of discretion standard was explained by this Court in Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App. Div.), certif. denied 144 N.J. 174 (1996), as follows: “the trial court’s exercise of discretion … may be disturbed only if it is `so wholly insupportable as to result in a denial of justice.” Goodyear Tire and Rubber Co. v. Kin Properties, Inc., 276 N.J. Super. 96, 106, 647 A.2d 478 (App. Div.), certif. denied, 139 N.J. 290 (1994) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484, 323 A.2d 495 (1974)).
“In reviewing the exercise of discretion, it is not the appellate function to decide whether the trial court took the wisest course, or even the better course, since to do so would merely be to substitute our judgment for that of the lower court. The question is only whether the trial judge pursues a manifestly unjust course.” Gittleman v. Central Jersey Bank & Trust Co., 103 N.J. Super. 175, 179, 246 A.2d 757 (App. Div. 1967), rev’d on other grounds, 52 N.J. 503, 246 A.2d 713 (1968).”
In the instant case, the Court clearly abused its discretion. A conference call was set up in which the judge clearly manipulated the facts put on record by interrupting the Appellant, talking over me, pulling a handheld microphone away so that my facts could not be put on record. It was prejudiced and the information the judge provided was contradictory multiple times. The Judge even threatened to sanction Appellant when Appellant attempted to dispute the false facts while she (the Judge), was putting on the record the respondent’s favor unjustly. Appellant filed on Opposition to the conference, moved to Disqualify the judge, and moved to Strike the conference. All were disregarded.
V. 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 APPELLANT 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.
Appellant 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, 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, 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.
VI. THE COURT WAS IN ERROR TO DISMISS APPELLANT’S CASE AND DENY MOTION TO COMPEL BASED ON INCORRECT CONTENTION THAT APPELLANT WAS DEMANDING COPIES OF THE VIDEO EVIDENCE. APPELLANT 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. 108, 40 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., 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, Appellant, 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).
VII. 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.
“[A]ctual prejudice, not possible or presumed prejudice, is required to support a due process claim.” State v. Aguirre, 287 N.J. Super. 128, 133-35 (App. Div. 1996).
The Court’s failure to probe the new facts amounted to an abuse of discretion. “[T]he trial court’s exercise of discretion … may be disturbed only if it is `so wholly insupportable as to result in a denial of justice.” Goodyear Tire and Rubber Co. v. Kin Properties, Inc., 276 N.J. Super. 96, 106, 647 A.2d 478 (App. Div.), certif. denied, 139 N.J. 290 (1994) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484, 323 A.2d 495 (1974)).
In the instant action, the facts show that there was a new report and thus the need for new dates with new allegations, this time against Appellant’s son and his actions to allegedly “instigate” his own bullying. All of this is not noted anywhere in the ALJ or commissioner’s decisions either. Therefore, the Court was in error when it failed to consider the need for new dates for Appellant to access and probe the new information provided.
- It was prejudicial to disregard all of Appellant’s proofs offered in Appellant’s Answer to the Motion to Dismiss.
The Court’s failure to consider a party’s arguments and/or allegations amounts to a violation of the party’s due process rights. Due process requires, at a minimum: (1) notice; (2) an opportunity to be heard; and (3) an impartial tribunal. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306. Accordingly, “The essence of due process certainly requires that the parties have adequate notice and opportunity to know the … evidence and to present evidence in argument and response.” State v. Garthe, 145 N.J. 1, 8, 678 A.2d 153 (1996).
“[A]ctual prejudice, not possible or presumed prejudice, is required to support a due process claim.” State v. Aguirre, 287 N.J. Super. 128, 133-35 (App. Div. 1996).
In Appellant’s Opposition (Answer) to the Respondent Motion to Dismiss, Appellant clearly disputed with proofs, the statement of facts offered by the Respondent and those same incorrect facts recorded on 7-14-20 that Appellant was prevented from disputing unjustly. These facts dispute the amount and dates of access Appellant was provided and in dispute in this case. It also disputes the quality of video and the claims that we were never denied access among other things.
VIII. IT WAS ERRORONEOUS AND/OR PREJUDICIAL TO DISREGARD MULTIPLE PLEADINGS SUCH AS A MOTION TO AMEND, DISQUALIFY, STRIKE AND VACATE INJUSTLY AFFECTING THE PROGRESSION OF APPELLANT’S CASE AND PREVENTING APPELLANT FROM KNOWING HOW TO ACT ON HER CASE.
The error in question is capable of producing an unjust result. N.J. Court Rules, Rule 2:10-22 provides in thar regard that:
Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.
Rule 2:10-22.
The standard of review requires that an agency’s decision be deferred to unless it is arbitrary, capricious, or unreasonable, or unsupported by substantial credible evidence in the record as a whole or inconsistent with its statutory mission. See Brady v. Board of Review, 152 N.J. 197, 210-211 (1997).
Denial and striking of Motions affects the rights to trial of litigants. Notably, a “fundamental right of trial by a fair and impartial jury” in civil matters is recognized by our courts. Wright v. Bernstein, 23 N.J. at 294; Panko v. Flintkote Co., 7 N.J. 55, 61 (1951).
There should be a reversal of a decision to strike off motions if it clearly appears that there was a miscarriage of justice under the law. R. 2:10-1; Dolson v. Anastasia, 55 N.J. 2 , 6-8 (1969); Carrino v. Novotny, 78 N.J. 355, 360 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 595-601 (1977).
The ALJ dismissed Appellant’s claims without regards to the liberal treatment of pro se pleadings, which action significantly affected Appellant’s case. Unlike Respondent, Appellant defends this appeal pro se. She filed the Petition and attempted to answer the motions filed by Respondent and plead her case with motions in support. Therefore, this court must be reminded that it must construe Appellant’s 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, 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, 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, in 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 the instant case a Motion to Amend my Petition was filed approximately one month after Appellant’s 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 Appellant had expected significantly affected Appellant’s case and what and how Appellant was to defend it. The motion was ignored. This unknown (what Appellant was defending or actually petitioning at that point in time) and how it affected Appellant’s case is illustrated in the 7-14-20 audio and transcript when the judge herself contradicts what she is deciding to keep Appellant from knowing how to defend her case. Appellant has pointed out in her Motion to Disqualify and recent Motion to Settle the Transcript that the judge flipped back and forth between her original petition and what she asked for in her amended one while Appellant never had an actual answer to my motion, but then refused to clarify it for Appellant after those contradictions. The ALJ’s initial decision and refusal to grant or deny Appellant 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 Appellant filed it without explanation. This motion supports Appellant claim of prejudice and abuse of discretion.\The next motion that Appellant filed to her case that was disregarded affecting the progression of Appellant’s case was a Motion to Strike. In this motion Appellant asked to strike multiple things inappropriate to that conference and the call or transcript itself. This motion was also not granted and denied. Appellant filed oppositions to not having Appellant’s motions heard but there was no response to them. After multiple attempts Appellant was told the motions “would be decided at final decision”. Appellant again objected to now decisions before the final decision, as again it prevented Appellant from acting on her case. In the final decision the motion to strike was only partially addressed, specifically leaving out this conference and transcript and Appellant’s request to strike it.
Another motion that was disregarded that had significant impact on Appellant’s case was the Motion to Vacate the order from the ALJ. When Appellant read the ALJ’s initial decision, it clearly states “respondent requested”, “motion for summary”, “summary judgment granted”. Appellant was confused as she was never served a motion for summary judgment from her adversary for her to oppose. Appellant 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 Appellant from opposing the motion properly under Rules 4:46 and 4:6-2 and Fed. R. Civ. P. 12(b). Appellant objected to the Motion to Vacate being disregarded and specifically requested it be heard. Appellant was told it would be decided again at final decision time but there is no such decision in the final decision as Appellant was told and the motion and valid points raised were disregarded affecting my case.
CONCLUSION
For the foregoing reasons, this Court should hold that the Appellant has sufficiently stated her case against the Respondent and that the ALJ erred in failing dismissing Appellant’s case without considering the lacking evidence. Appellant respectfully requests this Honorable Court reverses the ALJ’s Order and grants an Order demanding the release of the video evidence from the Respondent. Appellant also prays for any other relief this Court deems just.
Respectfully submitted,
Mary Ann Moretti
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been served via
[ENTER METHOD YOU SENT THIS DOCUMENT TO THE DEFENDANT] on [ENTER
THE DATE YOU SERVED THIS DOCUMENT], to:
Respectfully submitted,
______________________
Mary Ann Moretti,
12 Meadow Ridge Lane
Lafayette, NJ 07848
Pro Se
Respondent’s Attorney:
Marc H. Zitomer
Schenck, Price, Smith, King LLP
220 Park Avenue
PO Box 991
Florham Park, NJ 07932
973-539-1000
APPENDIX
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