Oxfeld v. New Jersey State Board of Education

Per Curiam.

These proceedings challenge the constitutionality of a school regulation governing student distribution of pamphlets and leaflets on school grounds. Out of deference to our dissenting colleagues we withheld announcement of our decision in the case, it being anticipated that some guidance to those who felt obliged to address the merits might be forthcoming from the United States Supreme Court. While this case was pending here, the Supreme Court heard argument in Bd. of School Comm’rs, Indianapolis v. Jacobs, 420 U. S. 128 , 95 S. Ct. 848 , 43 L. Ed. 2d 74 (1975), wherein students sought to enjoin enforcement of certain rules imposing restraints prior to distribution on school grounds of a student publication. The issue below had been whether the students’ First and Fourteenth Amendment rights were violated by the regulations, and the students had prevailed on the merits in the District Court, Jacobs v. Bd. of School Comm’rs, Indianapolis, 349 F. Supp. 605 (S. D. Ind. 1972), and in the Court of Appeals, 490 F. 2d 601 (7th Cir. 1973). However, the Su *303 preme Court did not reach the merits of the case, but rather determined that the matter had become moot.

This case presents substantially the same issues on federal and state constitutional grounds. It puts in question the validity of a literature-distribution regulation or "guidelines” promulgated at Columbia High School, within the jurisdiction of the Board of Education of South OrangeMaplewood. The Commissioner of Education approved the regulation and the State Board of Education affirmed that determination.

Petitioner Oxfeld appealed, and the Appellate Division affirmed unanimously in an unreported opinion which observed that “the present appeal may be moot, since it is questionable whether it asserts a justiciable claim for relief.” Nevertheless the case was there disposed of on the merits by an affirmance for the reasons given by the tribunals which had heard the case below. Petitioner’s appeal to this Court is based upon a substantial constitutional issue, B. 2:2-1 (a) (1).

The case is indeed moot, as it was when decided in the Appellate Division. Neither the petitioner-appellant nor any of the other original named petitioners is any longer a student at Columbia High School. They are not now nor have they for some time been subject to the regulation’s force. Further, we do not view this case as presenting any issue of great public importance compelling definitive resolution despite mootness, 1 see, e. g., Roe v. Wade, 410 U. S. 113 , 93 *304 S. Ct. 705 , 35 L. Ed. 2d 147 (1973); John F. Kennedy Memorial Hosp. v. Heston, 58 N. J. 576 (1971); Busik v. Levine, 63 N. J. 351, appeal dismissed, 414 U. S. 1106 , 94 S. Ct. 831 , 38 L. Ed. 2d 733 (1973); Dunellen Bd. of Educ. v. Dunellen Educ. Ass’n., 64 N. J. 17 (1973).

Under the circumstances we decline to review the decision of the educational authorities and the tribunal below. The appeal is:

Dismissed. No costs.

Nor are the circumstances such that we should save this case from its obvious mootness by recognizing it as a class action. Designating a cause in the pleadings a class action, as petitioners did here, does not make it one, see 3B J. Moore, Federal Practice, ¶ 23.02-2, at 152 (2d ed. 1974) ; at some point a court must determine whether a class action may be maintained, B. 4:32-2(a). That has never been done in this case. While relief was sought, in the original petition, not only on behalf of certain students who had been suspended and, “with regard to the chilling effect of the said regulation, on behalf of all students at Columbia High School,” the plain fact of the matter is that no one concerned with this litigation has treated *304 it as having any “class” character since the original pleadings were filed. Significantly, petitioners have never mentioned, let alone stressed, the “class” nature of the litigation during the administrative or judicial proceedings, including their presentation before this Court. Cf. Danner v. Phillips Petroleum Co., 447 F. 2d 159, 164 (5th Cir. 1971). With the case at bar in this posture we neither confront any issue nor ground any determination in the context of a class action.

Article I, ¶ 6, states:

Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. * * *