Jenkins v. Township of Morris Sch. Dist. & Bd. of Ed.

• Citation: 58 N.J. 1,274 A.2d 281
• Parties: Beatrice M. JENKINS et al., Petitioners-Appellants, v. The TOWNSHIP OF MORRIS SCHOOL DISTRICT AND BOARD OF EDUCATION, Respondent- Respondent, and The Town of Morristown School District and Board of Education, Respondent and Cross-Petitioner-Appellant, and The Borough of Morris Plains Board of Education, Respondent and Cross- Petitioner.
• Decision Date: 23 February 1971
• Court: United States State Supreme Court (New Jersey)

Page 1

58 N.J. 1

274 A.2d 281

Beatrice M. JENKINS et al., Petitioners-Appellants, v. The TOWNSHIP OF MORRIS SCHOOL DISTRICT AND BOARD OF EDUCATION, Respondent- Respondent and The Town of Morristown School District and Board of Education, Respondent and Cross-Petitioner-Appellant and The Borough of Morris Plains Board of Education, Respondent and Cross- Petitioner.

Supreme Court of New Jersey.

Feb. 23, 1971.

On petition for certification to Appellate Division, Superior Court.

Frank F. Harding, Morristown, for appellants Beatrice M. Jenkins, et al. (MacKenzie & Harding, Morristown, attorneys).

Victor H. Miles, Newark, for respondent Morris Tp. Bd. of Ed.

Stephen B. Wiley, Newark, for appellant Morristown Bd. of Ed.

Paul Bangiola, Morris Plains, for respondent The Borough of Morris Plains Bd. of Ed.

Virginia Long Annich, Deputy Atty. Gen., for Com'r of Ed. (George F. Kugler, Jr., Atty. Gen., of N.J., attorney).

Granted.

For granting of certification: Chief Justice WEINTRAUB, Justices JACOBS, PROCTOR, HALL and SCHETTINO--5.

For denial of certification: Justice FRANCIS--1.

FRANCIS, J. (dissenting).

Our Court should not grant the motion for certification and thus accept immediate jurisdiction of this controversy. I use 'controversy' advisedly because at the present time there is no 'case' in the judicial sense which justifies our intrusion into the matter. Our Court is an appellate tribunal; the New Jersey Constitution and statutes as well as our own rules make it so. A vital principle, which must be adhered to if we are to fulfill our function as a separate department of government, is that there must be a final judgment in a lower court or an appeal properly pending in the Appellate Division from a final order of an administrative agency before we can or should agree to exercise our power of review. In this instance, not only is there no judgment in a lower court, but there is no appeal properly pending in the Appellate Division, and most important, there is no final decision or order in the administrative agency, the State Board of Education, which now has jurisdiction over the controversy.

The State Board of Education is in a separate branch of the government, and it has the duty to decide the appeal pending before it from the decision of the Commissioner of Education. Until that decision eventuates, no party can acquire a right to review in the Appellate Division simply by ignoring the State Board proceeding and by a Pro forma filing of a notice of appeal. Nor can such a Pro forma filing provide the springboard for an immediate application to the Supreme Court to draw the matter into its own hands for decision. Such a course of action reduces to an empty formula the long standing doctrine requiring exhaustion of administrative remedies before court intervention should be sought.

When the Commissioner of Education rendered his decision on the basic issue presented to him, an appeal was taken therefrom to the State Board of Education, as the appropriate statute required. That appeal is still pending. There is no provision in any law anywhere authorizing the party who is appealing to by-pass the State Board and to appeal directly to the Appellate Division from the Commissioner's determination. Yet when the State Board advised appellants that it had not found time to hear the appeal, they decided not to await action by that tribunal. They decided instead that they would simply ignore their...