I need an opposition written to a motion to remand a case that is being appealed in superior court. The agency is motioning to remand the case to gain back control before I can file my initial appellate brief. My issues on appeal are that the agency was biased, there was an abuse of discretion (a summary motion that was never served or that I was never notified of was granted to get my original petition dismissed before I could have a hearing to present my case, the same is happening here, they do not want me to present the whole case and record on appeal) and the decision was arbitrary and capricious to begin with. There is also another issue on appeal not being addressed, another point of my appeal. So, if it goes back to the agency, like they would like now that I appealed, they have an extreme latitude in my case again. I would like the entire case and record to be reviewed de novo, as the agency ignored the issue and the judge ruled incorrectly on that portion of my case. I was just served the Motion today, May 17 and have 10 days to respond to it. If you can write this motion and support it with some case law please reach out ASAP.
I have to fight the remand and fight to keep it in the appellate court for a complete review- or minimally a review with decision on the access before it gets remanded
The reason I want to fight the remand back down to the agency is because the agency was biased to begin with and did not address the “access” portion of my case when the case was at the agency level
The commissioner ignored facts of my case of a with held report and violations in NJ ABR and the need for access to these videos
The commissioner has already ruled wrongly on the access, the judge erred in dismissing my petition to begin with so sending it back there is moot and will harm my case in that they will have complete control and a very wide latitude. My points on appeal are abuse of discretion and arbitrary and capricious decision
They will manipulate the access again so I have to have a judge decide fairly on that and not let it go back there until that happens. They are trying to get my case moved out of the appellate court before I can get my brief in to show the abuse of discretion and other things on the record that reflect the rules were not followed, another appealable point.
so that is why I have to fight an remand and in my opposition I was going to frame it exactly that way – the matter of access and violations in NJ ABR need to be reviewed by an appellate judge as that is what my petition seeks. The judges and respondent actually changed my petition and say I asked the courts to decide on the actual HIB decision, that’s not true as you see in the petition.
I asked for access to go back to a board appeal
My son should be allowed fairness at EACH step, from the school, to the commissioner to the supreme court if necessary and not “miss” or “skip” by not having evidence at that step
If it goes back there (remanded to agency) she will squash the video access issue again stating I saw “enough” (14 months ago a saw few clips not in preparation for an appeal)
Once the case goes back there, it will be even HARDER to appeal.
I need a de novo consideration of it all on the facts and records
I’m opposing a remand back to the agency – where an abuse of discretion has already happened and the access portion was not decided on by the errors of the judge and the summary decision without notification.
If the case goes back there they have extreme latitude in what they can do which will mean they can do nothing and the appellate court will no longer have jurisdiction and the abuse of discretion can happen again. The appellate court needs to either keep jurisdiction then remand or temporary remand with an order back to the appellate judge for the access portion
The commissioner cannot decide fairly without review of these videos – and only a judge can decide the access portion – not the commissioner- so the appellate court needs to maintain jurisdiction to decide the access THEN and only then can a remand happen
Another IMPORTANT point ARGUMENT I could be on the other end of fighting against 6 parents legally – the process goes the other way too. The parents of the children who do get HIB on their record, can now fight us the other way, they have that right under the same law. Its critical the right students are identified to not open us up to further litigation, that’s not fair.
My son is communication impaired, he named a “group” of girls as his perpetrators. The “acts” were behind his back so he had trouble determining who exactly was doing what. HIB issues are significant here in NJ in that it will go on a child’s permanent record. Its IMPERATIVE for BOTH parties in the interest of justice and fairness
NOT all the girls my son named (I saw some clips of video) are acting all the time, and one act that is physical does not involve all girls. So its important for the girls accused too to review these videos.
What’s highly unusual in this case is that the school is not cooperating unbiased
Note with an agency : It’s going to get remanded eventually on appeal. Because with an agency case a remand is actually a win as I believe. So I have to make sure I get this access from the judge before the remand happens or I will never ever have access to those videos again
So, It can be remanded back, but ONLY after the access issue is decided on in the appellate courts. All I have wanted (and in my petition to start) was fair access so I can support my child in an appeal. He will not be there to talk and I essentially have nothing but these videos to dispute their report.
one other point that I was going to make in my opposition, I don’t know if you will feel its pertinent or not, but access to this videos is SO critical for a number of reasons (mostly our documentation for any future actions we may have to take on behalf of our son)
in this case is to put it bluntly the commissioner is biased and also wants to hide these videos for the school district because of (history – that is not directly relevant to this case)that we can sue the school district if we choose and have a good case. The judges both acted inappropriately to help the respondent get the petition dismissed and block the videos I was seeking. That has not been our goal however (sue anyone), I just need this resolved safely for my son to return to school, If the case gets remanded back there now, they have EXTREME LATITUDE with the case and I will still not get access to those videos, I can guarantee that. I need a judge to look at everything, and not let all the other evidence I have in the record and need to present in the appendix of my initial brief. What will happen and can is that the commissioner can make another decision not without the baord, squashing my access to the video and then I would have nothing to go back to appeal – because they are framing the case that I want the commissioner to decide the HIB when I want access to go back to appeal to the board as the process states
The reasons I need access before a remand that could potentially end the case. First, my son deserves a “fair process” at each administrative step and he should have full chance to over turn at each one, this would be deprving him of the very first step in the appeal process by not allowing due process and access to evidence
Second in the fair justice of the accused to make sure all accused were actually involved. The videos need to be reviewed to determine that. No decision should be made until the videos are reviewed. If the commissioner makes another “Arbitrary and capricious decision” this round after a remand, it will be next to impossible to appeal that, I’ve done the research on that. 🙁 so I cant let it go there 🙂
They want to gain back control of the case to make their own decision I cant appeal and they will make decision saying “its HIB” but….. then squash my access to the videos to prove the violations in NJ ABR and harm to my son, we have standing at this point
squash the access that is so I cant document and prove the violations in NJ ABR and my son’s rights really, We are looking to maybe file a civil rights complaint
Hope this gives you a good idea on how to focus on convincing the judge that the video issue needs to be addressed BEFORE remand, once I get access and a way to present evidence reasonably in dispute of the report, I am happy to be remanded back to the school district and board for the proper appeal I should have gotten under the Act (NJ- ABR), then if it gets dimmissed there, we get our next fair shot at the commissioner, and so on as the administrative steps go.
o add to this document regarding appealing agency decisions : (1) arbitrary, capricious, and/or unlawful, (2) contrary to a constitutional right, (3) outside the agency’s authority, (4) a violation of the procedure that the agency was required to follow, or (5) unsupported by substantial evidence I can add to those titles I did not address
a remand is a “win” so opposing is not the norm unless with good cause , tow things can happen if I “win” appeal – a: (1) remand the case to the agency for further proceedings, or (2) compel agency action that has been unreasonably delayed or unlawfully withheld. I need to focus on the #2, compel them to provide appropriate access to proceed administratively
two things that is
So before the remand can happen, I need the appealable parts of the access addressed (new dates, appropriate documentation and presentation of clips of video and other “relevant information to my case” like the Act states
All of this and the proofs are in my Opposition to motion to dismiss and cross motion to compel discovery (access, with held report, new information, new dates, etc)
I feel my son has a constitutional right to defend himself from the false statements made about him instigating his abuse in the investigative report that was used to say “no HIB” and what I need to disprove in a board appeal.
At Legal writing experts, we would be happy to assist in preparing any legal document you need. We are international lawyers and attorneys with significant experience in legal drafting, Commercial-Corporate practice and consulting. In the last few years, we have successfully undertaken similar assignments for clients from different jurisdictions. If given this opportunity, we will be able to prepare the legal document within the shortest time possible.