ERIC PASTERNACK v. THE COLLEGE OF NEW JERSEY (TCNJ), et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0319-06T30319-06T3

ERIC PASTERNACK,

Plaintiff-Appellant,

v.

THE COLLEGE OF NEW JERSEY (TCNJ),

BARBARA GITENSTEIN, PRESIDENT

OF TCNJ; TIMOTHY ASHER, ASSOCIATE

DIRECTOR OF CAMPUS ACTIVITIES;

MAGDA MANETAS, DIRECTOR OF

STUDENT LIFE,

Defendants-Respondents.

_______________________________________

 

Argued October 23, 2007 - Decided

Before Judges Skillman, Winkelstein and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Mercer County, Docket No. C-99-06.

Randall J. Peach argued the cause for appellant (Law Office of Roy D. Curnow, attorney; Roy D. Curnow, of counsel and on the brief).

Sarah T. Darrow, Deputy Attorney General, argued the cause for respondents (Anne Milgram, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Ms. Darrow, on the brief).

PER CURIAM

Plaintiff Eric Pasternack appeals from an order entered by the Chancery Division on August 25, 2006, transferring the matter to this court pursuant to Rule 2:2-3(a)(2). For the reasons that follow, we reverse.

I.

In March 2006, plaintiff was a junior at the College of New Jersey (TCNJ). He resided in a campus townhouse with ten other students. On March 31, 2006, plaintiff and seven other students were "socializing" in the common area of the townhouse. Two campus police officers responded to the party and plaintiff was questioned. According to plaintiff, he admitted to having consumed one alcoholic beverage.

The next day, Magda Manetas (Manetas), Director of Student Life and Advisor to the Student Government Association (SGA), and Timothy Asher (Asher), Associate Director of Campus Activities, asked to meet with plaintiff. According to plaintiff, they discussed the incident and how it would affect plaintiff's candidacy for President of the SGA. Plaintiff alleges that Barbara Gitenstein (Gitenstein), the President of TCNJ, told Mineatas that the matter would be expedited.

On April 11, 2006, plaintiff was charged with three violations of TCNJ's alcohol policy and one violation of its noise policy. The SGA elections were held on April 16 and 17, and plaintiff was elected President. It is unclear from the record but it appears that plaintiff took office as President of the SGA upon or shortly after the election.

On April 26, 2006, a disciplinary hearing was held before Residence Director Steven Bobo. Plaintiff signed a waiver of his procedural rights and agreed to an informal hearing. Plaintiff was found responsible for the three alcohol violations, but not the noise violation. Plaintiff received a sanction of residential disciplinary probation until April 26, 2007, and he was required to attend an alcohol awareness program. Plaintiff was informed that he could appeal the disciplinary decision but he elected not to do so.

TCNJ has established certain eligibility requirements for students who wish to hold leadership positions in its student organizations. A student may not serve in an executive board position for such an organization unless the student has: completed a certain level of credits at the college; is fully matriculated; has a minimum 2.0 grade point average; served as a member of the particular organization for at least one year or has substantially equivalent experience; and is "free of probation with restrictions in residence, college-wide disciplinary probation, or higher-level disciplinary sanctions (college-wide probation with restrictions, suspension or dismissal)." Because plaintiff received residential disciplinary probation as a result of the violations of TCNJ's alcohol policy, he did not meet the criteria for holding the office of President of the SGA.

However, under the applicable rules, plaintiff was permitted to apply to the Campus Activities Board (CAB) for an exception to the criteria. The CAB is made up of representatives of twenty-four student organizations. Eleven members constitute a quorum. A vote of two thirds of the members who are present are required to "find in favor of an appeal." Any decision by the CAB on an appeal is final.

On April 27, 2006, plaintiff submitted a request for an exception and the CAB scheduled a hearing on the request that day. Plaintiff claims that he asked that two members of the CAB, Jon King and Olga Ross, be disqualified from participating because they actively supported his opponent in the election. Plaintiff was told to apply to the full CAB to disqualify King and Ross. It appears that the CAB decided that King and Ross could participate. The CAB heard the matter and voted to deny plaintiff's request for an exception.

Plaintiff informed Asher and Manetas of his concerns about the meeting. Because a quorum of the CAB had not been present, the matter was re-scheduled for May 16, 2006. On May 9, 2006, plaintiff was informed in writing of the names of the CAB members who would be participating in the hearing.

Plaintiff again objected to King's participation in the matter. Plaintiff also objected to the participation by Angel Hernandez and Lindsey Kilpatrick because they were advisors in the residence hall where a student named John Fiocco, Jr. had resided. Plaintiff said that he did not believe that Hernandez or Kilpatrick could be unbiased. Asher told plaintiff that he and Manetas had denied his request to disqualify the three students; however, only King and Kilpatrick participated in the hearing.

According to plaintiff, before he entered the room for the meeting, Asher and Manetas had already presented information against him. Plaintiff presented his case for an exception from the criteria. Plaintiff then was asked to leave the room. After some discussion, a vote was taken. Plaintiff failed to obtain the necessary vote of two-thirds of the members of CAB. Consequently, plaintiff's appeal was denied. Plaintiff says that this resulted in the loss of the $7,500 that he would have received for his service as SGA President, and the loss of his position as "House Assistant" with its hourly wage and a $1,500 credit towards tuition.

On July 10, 2006, plaintiff filed a verified complaint in the Chancery Division, General Equity Part, Middlesex County, naming TCNJ, Gitenstein, Asher, and Manetas as defendants. Plaintiff alleges that the CAB violated its rules and regulations in considering his application for the exception. He claims that his disqualification from the SGA Presidency was excessive, arbitrary and capricious and constituted a breach of contract and the implied covenant of good faith and fair dealing. Plaintiff also claims that defendants deprived him of his property and liberty rights under the United States Constitution and the New Jersey Constitution.

In addition, plaintiff asserted a claim under 42 U.S.C.A. 1983 based on his allegation that Gitenstein, Asher and Manetas conspired to deprive him of certain fundamental rights, and enforced a policy that violated his liberty and property rights without due process of law. Plaintiff also asserted claims for defamation, invasion of privacy, malicious interference with prospective economic advantage, and intentional infliction of emotional harm.

Plaintiff sought compensatory damages, punitive damages, costs and attorney's fees. Plaintiff also sought reinstatement to the position of SGA President, an injunction barring TCNJ from notifying law schools of the disciplinary action; and an order requiring TCNJ to "clear plaintiff's record."

On July 19, 2006, the court ordered defendants to show cause why an order should not be entered granting plaintiff the injunctive relief sought in the complaint. By order entered on August 4, 2006, the matter was transferred to Mercer County. On August 10, 2006, defendant moved pursuant to Rule 2:2-3(a)(2) to transfer the matter to the Appellate Division. The motion was heard on August 21, 2006.

The judge filed a written opinion in which he concluded that all of plaintiff's claims should be transferred to this court. The judge noted that under Rule 2:2-3(a)(2), the Appellate Division has exclusive jurisdiction to review decisions of state administrative agencies, with the exception of matters involving condemnation or inverse condemnation. The judge determined that CAB's decision denying plaintiff's request for an exception from the student leadership criteria was a final determination of TCNJ and the Appellate Division had exclusive jurisdiction to review that decision.

The judge additionally stated that plaintiff's contract and tort claims arise from "factual allegations and legal theories that are indistinguishable from the review of the administrative decision." The judge concluded that this court could consider those claims in conjunction with its review of TCNJ's administrative action. The judge entered an order dated August 25, 2006, memorializing his decision. This appeal followed.

II.

Plaintiff argues that the judge erred by transferring the matter to this court. Plaintiff contends that TCNJ is not a state administrative agency and this court does not have jurisdiction to review its decisions. Plaintiff additionally argues that his complaint not only challenges TCNJ's decision but also asserts constitutional violations and other causes of action that require development of a more complete factual record. Those claims, plaintiff maintains, are cognizable in the trial court, not the Appellate Division.

In response to these contentions, defendants argue that the trial judge properly transferred the matter to this court as an appeal from a final decision of a state agency. Defendants assert that the matter should be dismissed as moot because plaintiff graduated from TCNJ in May of 2007, his elected term as SGA President would have expired sometime in 2007, and he is no longer a student at TCNJ. Defendants argue that in the circumstances the court cannot grant effective relief on plaintiff's claims.

"Under Rule 2:2-3(a)(2), the Appellate Division has exclusive jurisdiction to review any decision of a state administrative agency except one involving condemnation or inverse condemnation." Rinaldo v. RLR Inv., LLC, 387 N.J. Super. 387, 399 (App. Div. 2006) (citing Infinity Broad. Corp. v. N.J. Meadowlands Comm'n, 187 N.J. 212, 215 (2006)). However, the fact that a complaint asserts a challenge to a decision of a state administrative agency and includes tort claims, does not confer jurisdiction on the Appellate Division to consider claims that are allocated under the court rules to the trial divisions of the Superior Court. Id. at 400 (citing Maisonet v. N.J. Dep't of Human Servs., 140 N.J. 214, 226-28 (1995)).

Indeed, tort claims "require the development of a full record and judicial fact-finding." Id. at 400. Such claims must be heard in the trial court, whether they are asserted against private parties or a state agency. Ibid. Similarly, "federal claims arising out of decisions rendered by state and local administrative agencies ordinarily will be heard in the Law Division." Maisonet, supra, 140 N.J. at 227.

Here, plaintiff has asserted a breach of contract claim, tort claims, as well as a claim under 42 U.S.C.A. 1983. These claims fall within the jurisdiction of the trial court. Maisonet, supra, 140 N.J. at 227; Rinaldo, supra, 387 N.J. Super. at 400. The judge nevertheless viewed plaintiff's complaint as asserting an appeal from a final decision of a state agency and transferred the appeal to this court along with plaintiff's other claims. We are convinced that the judge erred in doing so.

We assume for purposes of our decision that a final determination of the CAB is a determination of a state administrative agency that is reviewable by this court under Rule 2:2-3(a)(2). However, because plaintiff's contract, tort, and federal claims first must be decided in the trial court, our review of CAB's decision necessarily would be limited to determining whether plaintiff is entitled to the injunctive relief sought in the complaint. We conclude that appellate review of the CAB's decision is not warranted because plaintiff's demands for injunctive relief are either moot, meritless, or can be addressed in any appeal that may be taken from a final judgment on plaintiff's damage claims.

It is well established that the New Jersey courts do not render advisory opinions or exercise their jurisdiction "in the abstract." De Vesa v. Dorsey, 134 N.J. 420, 428 (1993) (citing In re J.I.S. Indus. Serv. Co. Landfill, 110 N.J. 101, 104 (1988)). "Consistent with that principle, our courts normally will not entertain cases when a controversy no longer exists and the disputed issues have become moot." Ibid. (citing Oxfeld v. N.J. State Bd. of Educ., 68 N.J. 301, 303-04 (1975)). "'While we ordinarily refuse to examine moot matters due to our reluctance to render legal decisions in the abstract and our desire to conserve judicial resources, we will rule on such matters where they are of substantial importance and are capable of repetition yet evade review.'" Ibid. (quoting In re J.I.S. Indus. Serv. Co., supra, 110 N.J. at 104).

In his complaint, plaintiff seeks reinstatement to the position of SGA President. However, the term of office to which plaintiff was elected has now expired. Moreover, plaintiff graduated in May 2007 and he is no longer a student at TCNJ. Therefore, plaintiff's demand for reinstatement to the position of SGA President is moot.

Furthermore, while this dispute may be significant to the parties of this action, plaintiff's demands for reinstatement to the SGA Presidency is not a matter of general public importance. This demand for injunctive relief also arises in a factual setting that may not occur again. In these circumstances, we decline to expend our limited judicial resources deciding whether plaintiff should have been reinstated to the SGA presidency.

Plaintiff also seeks an injunction barring TCNJ from notifying law schools of the "disciplinary action." We note that the record does not indicate whether plaintiff has ever applied to any law school. In any event, plaintiff never challenged TCNJ's determination that he violated its alcohol policy. Therefore, even if plaintiff was successful in his challenge to the CAB's decision refusing to waive the student leadership criteria, TCNJ would not be precluded from notifying any law school of the disciplinary action. Thus, there is absolutely no merit in this particular demand for relief.

In addition, plaintiff seeks an order requiring TCNJ "to clear [his] record." It is unclear precisely what relief plaintiff is seeking. Nevertheless, as we have pointed out, a successful challenge to the CAB's decision would not preclude TCNJ from noting in plaintiff's record that he was found responsible for three violations of its alcohol policy. The most that plaintiff could achieve would be an order requiring that TCNJ's records reflect that the CAB had wrongfully denied plaintiff's application for an exception to the student leadership criteria. We are convinced that the issue should first be considered by the trial court along with its adjudication of plaintiff's damage claims. If we need to address the issue, we can do so if an appeal is taken from the final judgment by the trial court on plaintiff's claims for compensatory damages.

We add that plaintiff commenced this action in the General Equity Part of the Chancery Division but at this juncture, his claims are predominantly claims for damages rather than injunctive relief. Therefore, this is now a matter for the Law Division. See R. 4:3-1(a)(1) and (4).

Accordingly, the order entered on August 25, 2006 is reversed and the matter transferred to the Law Division for further proceedings consistent with this opinion.

 

Fiocco was a freshman at TCNJ and disappeared on March 25, 2006. His body was found on April 25, 2006 in a Pennsylvania landfill. It was suspected that the consumption of alcohol played a role in his disappearance and death.

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A-0319-06T3

November 20, 2007