Maxfield v. Board of Education of Ridgewood

PER CURIAM.

We held in Maxfield v. Board of Education of the Township of Ridgewood, Docket No. A-2946-81T3, an unreported decision dated April 20, 1983, that petitioner Maxfield was tenure-eligible at the time of respondent board of education’s decision not to rehire her for the 1976-1977 school year.

In its brief before us, the State Board of Education concedes that petitioner “would have achieved tenure prior to her dismissal” if our substantive holding in Spiewak v. Rutherford Bd. of Ed., 180 N.J.Super. 312 (App.Div.1981), aff’d 90 N.J. 63 (1982), is applied to her case. Nevertheless, petitioner’s ten year quest for the tenure status she is entitled to under N.J.S.A. 18A:1-1 and 18A:28-5 was again thwarted by the State Board in September 1985, in reliance upon Rutherford Educ. Ass’n v. Bd. of Educ., 99 N.J. 8 (1985), decided April 11, 1985.

Our remand to the State Board on petitioner’s first appeal was on April 20, 1983. The purpose of the remand was to determine when, not if, petitioner had achieved tenure status and her entitlement, if any, to retroactive benefits and emoluments. The Supreme Court denied certification of our decision at 94 N.J. 591 (1983), decided July 13, 1983.

Thereafter, the State Board held no hearing, reached no fact findings and rendered no decision until after the Supreme Court decision in Rutherford, which declared that teachers not employed at the time of its decision in Spiewak were not entitled retroactively to tenure. In opposing the present appeal by petitioner, respondent board of education relies solely on the Rutherford declaration of limited retroactivity.

At the time of our remand on petitioner’s first appeal, the appeals- consolidated in Rutherford were pending before the Appellate Division. The factual backgrounds of several were distinguishable from petitioner’s.

Several of the Rutherford teachers had served in federally-funded Title I teaching positions, not, as petitioner here, in state-funded supplemental and special services teaching positions. Several of them had been barred from tenure by the State Board on administrative appeals subsequent to the Supreme Court decision in Spiewak, not, as petitioner here was, prior to the Supreme Court decision in Spiewak.

As the State Board acknowledged on petitioner’s first appeal, during the one year period between our decision and the Supreme Court’s in Spiewak its “ordinary remedy” was to grant tenure status to and order reinstatement of supplemental and special services teacher but not to federally-funded Title I teachers, who had been held tenure-ineligible in Point Pleasant Beach Teachers’ Ass’n v. Callam, 173 N.J.Super. 11 (App.Div. 1980), certif. den. 84 N.J. 469 (1980). On the first appeal before us the State Board confessed error in not applying our Spiewak decision to petitioner, whose administrative appeal was decided contrary to its “ordinary remedy,” during that one year interval.

Notwithstanding our unequivocal holding and remand on petitioner’s first appeal, the State Board chose to wait, apparently for the decision of our division, possibly that of another panel, on the unrelated Rutherford appeals, and, after that decision and the Supreme Court’s grant of certification on May 6, 1984, to wait still further for the Supreme Court result in Rutherford. In June 1984, 14 months after our remand, the State Board Legal Committee notified counsel that it was staying consideration of petitioner’s case pending the outcome of Rutherford.

The State Board lacked authority to delay as it did its implementing decision on our remand. Our decision was the law of the case. The State Board was obligated as a lower tribunal to carry out our mandate within a reasonable period of time. As the Supreme Court set forth in Flanigan v. McFeely, 20 N.J. 414, 420-421 (1956):

The principle, of course, is settled that the trial court is under a peremptory duty to obey in the particular case the mandate of the appellate court precisely as it is written. In re Plainfield-Union Water Co., 14 N.J. 296, 303 (1954); Hellstern v. Smelowitz, 17 N.J.Super. 366, 371 (App.Div.1952); McGarry v. Central R. Co. of New Jersey, 107 N.J.L. 382 (E. & A.1931); Jewett v. Dringer, 31 N.J.Eq. 586 (Ch.1879). Mr. Justice Heher said in the Plainfield-Union Water Co. case:

"The mandate is a judicial precept that must be enforced as written. Relief from its directions, even though manifestly erroneous, can be had only in the appellate court' whose judgment it is. Isserman v. Isserman, 2 N.J. 1 (1949); Oswald v. Seidler, 138 N.J.Eq. 440 (E. & A.1944); Wemple v. B.F. Goodrich Co., 127 N.J.Eq. 333 (E. & A.1940); Briggs v. Pennsylvania R. Co., 334 U.S. 304, 68 S.Ct. 1039, 92 L.Ed. 1403 (1948). The subordination of the inferior tribunal is of the very essence of the appellate function; the mandate is the process directed to the execution of the appellate judgment, and is therefore a command to be obeyed. The reinvestiture of jurisdiction in the inferior tribunal is in consonance with that judgment, and qualified accordingly. The appellate judgment becomes the law of the case; and the mandate is the direction for conforming judicial action. In re Sanford Fork & Tool Co., 160 U.S. 247, 16 S.Ct. 291, 40 L.Ed. 414 (1895). The duty is simply one of compliance with the precept.”

The ultimate denial of tenure by the-State Board flouted its mandatory obligation on our remand.

The State Board decision on appeal verges on unconscionable to petitioner under all the circumstances, including those preceding our first decision: an unaccounted-for three and a half year delay between the conclusion of hearings before a Hearing Examiner in April 1977 and the issuance of his report and recommendation in January 1981; the State Board’s confession of error in its first decision barring tenure to petitioner; and the pendency of petitioner’s first appeal to us at the time of the Supreme Court’s Spiewak decision. Petitioner should not be denied relief on appeal before us because her counsel failed to move before the State Board or before us to compel the State Board to render a decision in accordance with our mandate on remand.

We recognize that the Supreme Court in Rutherford expressed apprehension about “significant administrative confusion” upon unlimited retroactive application of Spiewak. Petitioner’s is one case only. Significant administrative confusion would not ensue upon a final determination extending to her the benefit of our decision in her favor, which was the law of the case preceding Rutherford by two years.

Our holding on petitioner’s first appeal encompassed only petitioner’s tenure status and did not adjudicate her entitlement, if any, to retroactive benefits and emoluments incidental to tenure. Accordingly, to that extent the declaration on limited retroactivity in Rutherford is applied, precluding petitioner from back pay or emoluments of tenure prior to the date when petitioner should have been vested with tenure upon our initial remand.

We reverse the State Board decision on appeal. We remand and direct the State Board to order what it should have ordered on our initial remand: that petitioner is a member of respondent board of education’s teaching staff with tenure status. We also direct the State Board to order that petitioner is entitled to back pay and other benefits and emoluments incidental to tenure from and after October 20, 1983, allowing a reasonable period of six months after our first decision within which the State should have acted. Petitioner’s back pay, benefits and emoluments are to be calculated for the teaching position which she was filling at the time of her termination in 1976 in violation of her tenure rights.

We do not retain jurisdiction.