# Petition for Writ of Certiorari — El-Hewie v. Board of Education

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 894

## Text

Hn Che
Supreme Court of the United States

a +

\IOHAMED F. EL-HEWLE, Pro Se

BOARD OF EDUCATION OF THE
BERGEN COUNTY VOCATIONAL!
SCHOOL DISTRICT, BERGEN COUNTY,

, ) r
Respondents

Petition For A Writ Of Certiorari
fo The
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION

eee - -_ ———

PETITION FOR A WRIT OF CERTIORARI

QUESTION PRESENTED

Whether the dismissal of a claim of Law
Against Discrimination (LAD) in the residency of
New Jersey State’s Provisional Teacher Program,
which was raised in a state administrative litigation,
offends the State or Federal Constitution, under the

follewing circumstances:

(a) When the reviewing Appellate panel has
abandoned its year 2008’s holding in a similar
residency question and arbitrarily reverted back to
the year 1982’s caselaw that is irrelevant to

residency in the Provisional Teacher Program;

(b) When the State of New Jersey has eliminated
the State Board of Education from the appeal process
after it accepted Petitioner’s briefs and replies, but

held no review:
(c) When, after this Appellate’ opinion was issued,

the State Agency in question removed the
Superintendent of the respondent’s board of
education from his position, for engaging in
malfeasance over the past sixteen years, yet both the
Supreme Court of New Jersey and the State Agency
refused to undo the harm inflected by the
Superintendent upon this Appellant;

(d) When the reviewing Appellate panel
acknowledged its limited-scope of judicial review of
an administrative agency decision and the New
Jersey Supreme Court recognized that “thorny
questions have arisen in previous cases of LAD
claims allegedly raised in an administrative
litigation before an administrative agency having
concurrent jurisdiction with the [Division of Civil
Rights]’’?

LIST OF PARTIES

The following 1s a list of all parties to the
proceedings in the Court below, as required by Rule
24.1(b) and Rule 29.1 of the Rules of the Supreme

Court of the United States.
Muhamed F. El-Hewie, appellant pro se.

Nowell Amoroso Klein Bierman, attorneys
for respondent Board of Education of the
Bergen County Vocational School District
(Bradley M. Wilson, of counsel and on the
brief: Lori E. Kolin, on the brief).

Attorney General of the State of New Jersey,

attorney. for respondent Commissioner of

.
~

Education, (Jennifer L. Campbell, Deputy
Attorney General).

TABLE OF CONTENTS

QUESTION PRESENTED

LIST OF PARTIES

TABLE OF CONTENTS OF APPENDIX
TABLE OF AUTHORITIES

PETITION FOR A WRIT OF
CERTIORARI

OPINIONS BELOW

JURISDICTION

STATUTES INVOLVED

STATEMENT OF THE CASE

POINT ONE.
The Appellate's decision contravenes

with the prior decision of the same
Appellate Court in Leang v. Jersey
City Bd. of Educ., 399 N.J.Super. 329

(2008).

(1) The Appellate’s decision erred by
concluding that the plaintiff was evaluated
“twice” formatively, in the first phase of

the PTP

(2) The Appellate’s decision erred in
overlooking the requirements of N.J.A.C.

6A:9-8.7

(3) The Appellate’s decision erred in
applying “Dore v. Board of Educ. Of the
Township of Bedminster’ on provisional
teacher certification.

(-t) The Appellate’s decision erred by
omitting the role of mentoring and training

when comparing a provisional teacher to a
well-trained teacher.

(5) The Appellate’s decision erred by
omitting the emergent teaching experience
which Respondent put petitioner through
without any support or mentoring.

(6) The Appellate’s decision erred in
concluding that an alternate
route/provisional teacher could complete
the Provisional Teacher Program within
SEVEN months.

POINT TWO

The Appellate's decision contravenes with the
prior decision of its Supreme Court in
Hennessey, supra. that questioned’ the

impropriety of administrative litigation in
claims of LAD. (cited by the United
States Court of Appeals for Third
Circuit in El-Hewie v. Bergen County,
USCA for 34 Circuit No. N.J.A.C.
(issued September 17, 2009).

CONCLUSION

TABLE OF CONTENTS OF APPENDIX

Order denying certification, App 2
THE SUPREME COURT
OF NEW JERSEY.

20-Apr-10

Order denying expanding the record,
THE SUPREME COURT

OF NEW JERSEY.

20-Apr-10

Opinion
Affirming the Agency Final Decision
SUPERIOR COURT

OF NEW JERSEY

APPELLATE DIVISION, A-6310-07T3
24-Dec-09

Final Agency Decision
COMMISSIONER OF EDUCATION

10-Apr-08

(nitial Decision of ALJ.

State of New Jersey
OFFICE OF ADMINISTRATIVE LAW

27-Feb-08

Viil

TABLE OF AUTHORITIES

CASELAWS:

Dore v. Board of Educ. Of the Township of
Bedminster, 185 N.J. Super. 447 (App. Div.
1982).

El-Hewie v. Bergen County, et. al., USCA
for the Third Circuit, Case: N.J.A.C.,
clecided 09/17/2009.

Kl-Hewie v. Board of Ed of Bergen County
Vocational School District, docket No. A-
6310-07T3, Decided on December 24, 2009.
Hennessey v. Winslow Township, 183 N.J.
593, 599 (2005).

Leang v. Jersey City Bd. of Educ. 198 N.J.
557 (2009).

Leang v. Jersey City Bd. of Educ. 399
N.J.Super. 329 (2008).

NEW JERSEY STATUTES ANNOTATED:

N.J.S.A 18A.28-5
N.J.S.A. § 18A:27-4.1la

NEW JERSEY ADMINISTRATIVE CODE:

N.J.A.C. § GA:9-8.

STATUTES:
12 U.S.C. § 1981
12 U.S.C. § 1983
12 U.S.C. § 1985
12 U.S.C. § 1986

2,8.12,16

2,15,16

16
2,6,7,8,11,15

2,6,7,8,11,15

| ,3-
0,8,10,11, 14-
17

PETITION FOR A WRIT OF CERTIORARI

Petitioner Mohamed F. El-Hewie. respectfully
prays that a writ of certiorari be issued to review the
judgments of the Appellate Division of the Superior
Court and of the Supreme Court of New Jersey. In
plain contravention of the requirements of the
Constitution of the United States and federal law
the Appellate Division of the Superior Court of New
Jersey has embarked on an ad hoc, standardless, and
lawless exercise of judicial power, which appeared
designed to thwart the considered judgments of New
Jersey's legislative branch. In a year 2009’s opinion,
the Supreme Court of New Jersey reversed the
2008’s decision of the Appellate Division that
attempted to uphold the state school law N.J.A.C.
6A:9-8, which requires the local boards of education
to provide provisional teachers with a state-approved
mentoring plan. Instead, the Supreme Court of New
Jersey opined that a provisional teacher could be
terminated from the Provisional Teacher Program if
the hiring board refused to renew his/her contract
without adhering the N.J.A.C. 6A:9-8. Meanwhile,
the same Appellate Division that, in the year 2008,
defended the rights of provisional teachers to the full
protection of N.J.A.C. 6A:9-8, has abandoned its own
2008's holding and arbitrarily reverted to its year
1982’s holding that nontenured teachers could be
nonrenewed regardless of the violation of the state
regulation by the hiring boards of education.

Wherefore, the court of last resort in the
State of New Jersey has created a_ state of
lawlessness in the employment of teachers in the
State of New Jersey, by preventing the Appellate
Division of the Superior Court from upholding the

state school laws; the Appellate Division of the
Superior Court of New Jersey disregarded the
opinion of its Supreme Court in Hennessey, supra,
that questioned the impropriety of administrative
litigation in claims of LAD; and the Commissioner of
Education was compelled by the public outcry to
remove the corrupt superintendent and_ board
members for malfeasance that extended over sixteen
years, granting certification by this Court could
resolve the conflicts between:

i) Dore v. Board of Educ. Of the ‘Township of
Bedminster (1982) and Leang v. Jersey City
Board of Education (2009),

and between:

(ii) This Appellate’s decision and New Jersey
Supreme Court determination in Hennessey v
Winslow Twp., 875 A.2d 240, 245 (N.J. 2005)..

aa

OPINIONS BELOW

The Order of the Supreme Court of New
Jersey is attached in Appendix (App 2-3). The
opinion of Appellate Division of the Superior Court of
New Jersey is attached in Appendix (App. 4-21). The
final decision of the Commissioner of Education is
attached in Appendix (App. 22-25). The Initial
Decision of the ALJ is attached in Appendix (26-73).

JURISDICTION

The judgment of the Supreme Court of New
Jersey denying Plaintiffs application for
certification of the opinion of the Appellate Division
of the Superior Court of New Jersey was entered on
April 20, 2010. This Court has jurisdiction under 28

U.S.C. § 125-4(1).

STATUTES INVOLVED

This case involves 42 U.S.C. §§ 1981, 1983,
1985, 1986; N.J.S.A. § 18A:27-4.la (pertaining to a
board of education’s appointment, transfer, or
removal of officers and employees); and N.J.A.C. §§
6A:9-8.3 (“Requirements for Instructional
Certificate”), 6A:9-3.3 (“Professional Standards for
Teachers”), and 6A:9-3.4 (“Professional Standards for

School Leaders’)

STATEMENT OF THE CASE

Petitioner was hired on November 28, 2005 as
an alternate route/ provisional teacher, to replace the
resigned teacher; Dr. Orlov. Dr. Orlov quitted his
teaching position abruptly, with the responding
hoard of education, after a confrontation with the
school Principal Patricia Cosgrove. Defendant's
School District registered petitioner with the
Provisional Teacher Program (PTP) on November 23,
2005. Petitioner started the PTP on February 28,
2006. On April 10, 2006, the school principal;
Patricia Cosgrove notified petitioner with her

intention to terminate him. On May 19, 2006, the
district’s board of education affirmed the principal's
decision to terminate appellant's teaching contract.

This dispute arises out of a decision by the
soard of Education of the Bergen County Vocational
School District (“the Board”) not to renew
Petitioner's contract for employment as a provisional
teacher for the 2006-2007 school year while
petitioner was still in Phase-One of the Teacher
Training Program. Petitioner was terminated from
the Provisional Teacher Program of the State of New
Jersey without fulfilling the state requirements of
N.S.A.C.6A:9-8.3, 8.4, 86, and _ 8.7. As such,
Petitioner was thrown out of a teacher certification
proceeding, with falsified mentoring documents, and
without the complete three evaluations required by
the State of New Jersey to certify or to deny
certification of an_ alternate-route provisional

teacher

On June 21, 2006, appellant petitioned the
Commissioner of Education to grant him emergent
relief before the end of the first phase of the
Provisional Teacher Program that ended on June LO,
2006. On July 10, 2006, the school principal,
Patricia Cosgrove notified the PTP that “petitioner
NEVER began in the position”, “completed ZERO
weeks of mentoring and ZERO weeks of full-time
teaching.” On December 6, 2006, Superintendent
Robert <Aloia_ notified the Provisional Teacher
Program that petitioner was mentored and has
taught 28 weeks. After the trial record closed,
Plaintiff discovered that \loia started his plan to
remove Cosgrove from her position around that date

After six-day evidentiary trial, the ALJ tssued

her [Initial Decision on February 27, 2008. On April

11, 2008, the Commissioner adopted the [nitial
the ALJ and dismissed petitioners
complaint. On April 14, 2008 petitioner appealed to
the State Board of Education (SBE) from the
Commissioners decision. On July 8, 2008, the
Commissioner of Education aborted the petitioners

Decision of

ongoing appeal process with the SBE

As a consequence of the elimination of the
SBE from the appeal process, Petitioner initiated
anew an appeal with the Appellate Division of the

Superior Court of New Jersey

On October 5, 2009 and simultaneously with
the Appellate Panel's commencement of argument (of
Plaintiffs appeal concerning “the fraudulent
management of an educational institution.” See App
10, end of first paragraph), the Office of Fiscal
\ccountability and Compliance (OFAC) of the
Department of Education was tipped by multiple
complainants over the’ unethical/illegal/unsound
business activities of the respondent’s board
(reference document omitted). On February 1, 2010,
the investigators of OFAC published their Report,
chased the superintendent Robert Aloia out of his
position by indefinitely suspending him
Simultaneously, on February 7, 2010, the County
Kxecutive and the Board of Freeholders removed the
Board's President Jack Drakeford The Report
stated

foward the conclusion of the OFAC investigation
the superintendent was placed on administrative

leave ind An interim superintendent assumed control

of the districts. The newly assigned interim
superintendent took immediate steps to correct
ileficiencies and ensure compliance with statute and

code.” (reference omitted)

On December 2-4, 2009, the Appellate Division
of New Jersey stated its limited-scope of review of an
Agency decision and affirmed the Commissioner’s
final decision. On February 1, 2010, the Report
refuted the Appellate’s Opinion and pursued the
engagement of the respondent's board in criminal
fraud, by filing its factfindings with the same
Attorney General, party to the instant action.

Petitioner, proceeding pro se, petitioned the
Supreme Court of New Jersey for certification of the
order of the Appellate Division of the Superior Court
of New Jersey, which: (i) affirmed the Agency final
decision by relying on Dore’s 1982’s, supra, (il)
dismissed the removal of the State Board of
Education from on July 7, 2008, and (iii) dismissed
its own holding in Leang’s 2008, supra, regarding the
rights of provisional teachers to state-approved
mentoring during the residency in the Provisional

Teacher Program.

On April 20, 2010, after accepting briefs,
replies, and updates on the public outcry of the
corruption with the Board, published in the Report of
OFAC, the Supreme Court of New Jersey denied
certification, with cost.

ae
¥

The vpinion of the Appellate Division of the
Superior Court of New Jersey and the denial of

certification by the Supreme Court of New Jersey
entail the following controversial points:

POINT ONE

The Appellate's decision contravenes with the
prior decision of the same Appellate Court in
Leang v. Jersey City Bd. of Educ, 399
N.J.Super. 329 (2008).

In Leang (2008), supra, the same Appellate
Court applied the School Laws N.J.A.C. 6A:9-8.3, 8.4,
8.6, and 8.7 in a manner that recognized the intent of
the legislature in standardizing the mentoring
program to help alternate-route provisional teacher
succeed in teaching and secure tenure. Leang’s

Appellate Court opined:

“Indeed, the mentoring program was to
begin one month after the date of hire and required
a support team consisting of at least the principal
and the mentor. The mentor was to make five iorty-
minute contacts biweekly for the first ten weeks of
teaching. Thereafter, the mentor was to have four
forty-minute contacts every five weeks during the
remaining twenty weeks of the program. The
mentor was required to complete a "Visitation
Form" following each contact.”

“[The Principal] admitted that not having
the ESL curriculum would cause Sopharie's
evaluations to be lower than they might have been.”

Furthermore, Leang’s Court emphasized the
special circumstances that confront alternate-route
teachers, beyond those of certified and trained
nontenured teachers. The same Appellate Court
reinstated Plaintiffs employment's contract. It

reasoned: “the repeated delays in obtaining the
curriculum would increasingly undermine Plaintiffs
evaluations and cause economic loss.”

In Leang (2009) , supra, the Supreme Court of
New Jersey disregarded the implied employment
contract of provisional teachers in a state-residency
program and thus reversed the <ppellate’s decision
in Leang (2008), supra. Rather, the Court held Public
entities liable for discrimination claims brought by
their employees notwithstanding the limitations
imposed by the Tort Claims Act (TCA).

[n this Appellate’s decision, the Court
abandoned its reasoning in Leang (2008), on the
essential roles of mentoring and _ provisional
evaluations. The court reverted back to Dore v. Bd. of
Educ., 185 N.J. Super. 447, 456 (App. Div. 1982) and
reasoned, “the failure to strictly comply with
statutory procedures does not require _ petitioner's
reinstatement.” While Dore, supra, dealt with a
nontenured teacher who was neither provisional, nor
alternate route teacher, but was rather a certified
teacher in his third year of teaching, this Appellate
Court arbitrarily dismissed all the improvements
made (since Dore’s 1982’s regulation) in the year
2005’s State School Laws N.J.A.C. 6A:9-8.3, 8.4, 8.6,

and 8.7.

This .Appellate panel made the following gross

errors:

(1) The aAppellate’s decision erred _ by
concluding that the plaintiff was evaluated
“twice” formatively, in the first phase of the

rar.

(1) The Appellate’s decision acknowledged clearly
that Plaintiff [attended training in the spring of 2006
and received a certificate of completion for the first of
three phases. He was discharged from ARP on March
15, 2006, however, when the Human Resource
manager for the District learned of his termination.]
See App. 6. <As such, Plaintiff only completed the
first phase of the Provisional Teacher Program,
which coincides with the first formative-evaluation.
Furthermore, Plaintiff was terminated from the PTP
prior to the commencement of any mentoring,
coursework, or provisional evaluation.

(11) The Appellate’s decision stated clearly that the
first formative-evaluation was due at ten-week in the
first phase of the PTP. The second formative-
evaluation was due at twenty-week in the second
phase of the PTP. The third summative-evaluation

was due at thirty-four-week at the end of the third
phase of the PTP. See App. 8. There is nothing in
the record that supports the Appellate’s decision’s
conclusion that Plaintiff was twice evaluated

formatively.

(iii) Furthermore, the Appellate’s decision’s erred
in limiting the characterization of provisional
evaluations by concluding that “a summative-
evaluation is done in paragraph form, whereas a
formative-evaluation is completed by way of a
checklist” See App. 8. The trial record clearly
explains that “formative” and “summative”
evaluations referred to the level of “forming”
teaching skills and in “maturing” in provisional
teaching experience, respectfully.

10

(2) The Appellate’s decision erred in
overlooking the requirements of N.J.A.C. 6A:9-
8.7.

(i) N.J.A.C. 6A:9-8.7 (Recommendation for

certification of provisional teachers) holds:
(a) Within 30 clays after the conclusion of the
State-approved district training program, the
building principal shall submit the final
evaluation directly to the Secretary that shall
contain a recommendation regarding standard
certification for each provisional teacher.

(b) The final evaluation for each provisional
teacher shall include one of the _ following
recommendations:

1. Approved: Recommends issuance of a
standard certificate;

2. Insufficient: Recommends that a standard
certificate not be issued but that the candidate be
permitted to seek entry on one more occasion into
a State-approved district training program; or
3. Disapproved: Recommends that
standard certificate not be issued and that the
candidate not be allowed to enter into another
State approved district training program.

a

(c) Candidates who receive a recommendation
of “disapproved” or two recommendations of
“insufficient” may petition the Board of
Examiners for approval of additional
opportunities to seek provisional employment in
districts other than those in which they received
unfavorable recommendations pursuant to

concluded

(ii) Appellate’s decision erroneously
that the alternate-route/provisional teachers’
employment contract could be nonrenewed based on
alleged poor-performance prior to the commencing of

1]

the provisional teachers’ training and mentoring, in
disregard to N.J.A.C. 6A:9-8.3, 8.4, 8.6, and 8.7. (See

App. 20.)

Gi) Appellate’s decision erroneously concluded
that the alternate-route/provisional teachers could be
terminated from the PTP prior to the completion of
the three phases of training, mentoring, and
coursework, in disregard to N.J.A.C. 6A:9-8.3, 8.4,
8.6, and 8.7, and without any recommendation or
evaluation of performance.

(iv) Wherefore, Plaintiff was never been declared
“insufficient” by the school principal Patricia
Cosgrove, who ceased to hold her position, nor was
Plaintitf offered two formative and one summative-
evaluations, the Appellate’s decision erred on
commenting on Plaintiffs performance in_ the
absence of completely developed record. In

Leang, supra, the same Appellate Court opined:

“Nor do we know from the record whether [the
Principal]'s conduct in ignoring [Plaintiff]'s repeated
requests for the ESL curriculum, which [the
Principal] admitted would result in increasingly
unsatisfactory evaluations, caused economic loss to

[Plaintiff].”

(v) Wherefore, Plaintiffs administrative record
was incomplete due to the removal of the State Board
of Education on July 7, 2008, by Jon Corzine’s new
law P.L. 2008, ct. 36, this court does not have clear
facts on reasons why Patricia Cosgrove was removed
from her position as_ school principal, while
petitioner's trial was underway.

]2

—

(3) The Appellate’s decision erred in applying
“Dore v. Board of Educ. Of the Township of
Bedminster” on provisional teacher

certification.

teacher

(1) In Dore, supra, a _ nontenured
challenged his nonrenewal for a third contract year
since three evaluations of him were not conducted
during the 1975-76 school year. Dore was teaching
for two years and was not part of the PTP, that the
three annual evaluations do not have the same effect
as mentoring and training of an alternate route

novice teacher.

(11) In contrast to Dore, the current petitioner was
barely starting a _ teacher-training’ program.
Petitioner would be harmed irreparably if the
mentoring and certification process were not

rectified.

(iii) In 1975-1976, when Dore’s caselaw took place,
the Board of Education, and not the Superintendent,
was authorized to nonrenew teachers. The statutes
were amended such that the Superintendent, and
not the board members, recommends nonrenewal of
a teacher. (N.J.S.A. 18A:12-24.1(c), (d), (h) and (4),
refer to the board member’s duty not to interfere
with the superintendent’s job and N.J.S.A. 18A:27-
4.1 that delegates the task of terminating teacher to
the superintendent, and not to the board members
(as was the case in 1976, when Dore was

adjudicated.))

Therefore, the Appellate’s decision’ assertion
that “The board may reach its conclusion about a
nontenured teacher on a broad base of input received

13

from a variety of people, including members of the
public, parents of students and a board member's
own knowledge of a teacher" is not applicable at the
present time, pursuant to N.J.S.A. 18A:27-4.

(4) The Appellate’s decision erred by omitting
the role of mentoring and training when
comparing a provisional teacher to a well-

trained teacher.

The ALJ commented on Plaintiffs
performance out of the framework of the state-
approved teachers’ training regulation, and by
assuming that petitioners performance was
deficient, when petitioner was introduced to teaching
in emergent situation on November 28, 2005, has
barely started training, and was deprived from the
state-approved Board’s mentoring plan and PTP.

See App. 35.

(3) The Appellate’s decision erred by omitting

the emergent teaching experience which
Respondent put petitioner through without any

support or mentoring.

(i) Dr. Orlov resigned suddenly on November 9,
2005, because of confrontation with the School
Principal Patricia Cosgrove. Cosgrove ended up by
losing her position as a principal on June 29, 2007,
while the evidentiary trial ended on June 6, 2007.
(Orlov ~- Direct, TR. 3: 21, 9-10/ 22, 1-22).

(ii) Petitioner took over Dr. Orlov’s classes on
November 28, 2005 and struggled for three months
to get the five abandoned classes to catch up with
other classes in the school.

(6) The saAppellate’s decision erred in
concluding that an alternate route/provisional
teacher could complete the Provisional Teacher

Program within SEVEN months.

Plaintiff started teaching on November 28,
2005 through June 30, 2006:

(i) The Appellate’s decision erred in concluding
that the statute "does not provide for any
penalty in the event a local board fails to
follow the pr[e]scribed procedures”. I[n Dore,
that procedure was the internal evaluation of a
certified teacher. In the current case, the state
regulation N.-J.A.C. 6A:9-8.3 holds:

“(a) each district board of education shall be
authorized to employ a provisional teacher after
its mentoring plan has been approved pursuant
to V.J.A.C. 6A:9-8,4(d) 3.

(b) Each State-approved district training
program shall provide essential knowledge and

skills through the following training:

L. A full-time clinical experience of no less than
20 days duration shall be provided by in-district
personnel as clescribed and approved in the
district's local mentor plan and may be in joint
sponsorship with other educational entities. The
clinical experience shall prepare the novice
teacher with the skills and knowledge to succeed
in the initial teaching experience and shall take
place prior to the time at which the novice
teacher takes full responsibuity for a classroom.
This clinical cxperience shall provide high
quality pre-professional support, instruction and
clintcal experiences and study in those essential

15

areas of professional study pursuant to 'V.J.A.C.
6A:9-3.3. This requirement shall not apply to
provisional teachers who hold a CEAS pursuant
to NALAC, 6A:9-3.] (b).

2. On-going mentoring
teacher shall take place over a period of 30
weeks in accordance with the local mentor plan
pursuant to .V.-J.A.C. 6A:9-8.-4 and in accordance
with the Professional Standards for Teachers.”

of the provisional

(11) While the Appellate’s decision defends the
school board’s right to terminate teacher's contract ,
it conflicted with its prior decision in Leang, that:

[Plaintiff] has presented facts from which a
reasonable finder of fact might conclude that the
Board's mentor program was part of [Plaintiff]'s
contract because that program was clearly
intended to help provisional teachers to succeed

and secure tenured.”

POINT TWO
The <Appellate's decision contravenes
with the prior decision of its Supreme Court in
Hennessey, supra, that questioned’ the
impropriety of administrative litigation in
claims of LAD. (cited by the United States

v. Bergen County, USCA for 34 Circuit No.
N.J.A.C. (issued. September 17, 2009).

Here, the Appellate Court recognized the
following four inquiries that limit judicial review of

an agency <lecision:

(1) Whether the agency's decision offends the State or
Federal Constitution: (2) whether the agency's action
violates cxpress or implied legislative policies; (3)
whether the record contains substantial evidence to

16

support the findings on which the agency based its
action; and (4) whether in applying the legislative
policies to the facts, the agency clearly erred in reaching
a conclusion that could not reasonably huve been made
on a showing of the relevant

factors,

{[Karins v. City of Ath City, 152 N.S. 532, 5-40 (1998)
(quoting George Harms Constr. Co, v. N.J. Tpk. Auth.,
137 N.J. 8, 27 (199-4)).]

See App. 12.

The Appellate’s decision failed to explain how
the Dore (1982)’s. legislative policies would apply to
the current plaintiffs provisional certification,
mentoring, training, and employment. It also failed
to recognize the recent opinion of the New Jersey
Supreme Court on [Law Against Discrimination] in
Hennessey v. Winslow Twp., 875 A.2d 240, 245 (N.J.
2005). In El-Hewie v. Bergen County, et. al., USCA
for 3rd Circuit No. N.J.A.C. (issued September 17,

2009), the USCA For the 34 Circuit emphasized:

“the New Jersey Supreme Court has
recognized that “thorny questions have arisen in
previous cases in respect of whether preclusion of
a [Law Against Discrimination] complaint is
appropriate when the same LAD claim allegedly
was raised in an administrative litigation before
an administrative agency having concurrent
jurisdiction with the [Division of Civil Rights].’
(Citing Hennessey v, Winslow Twp., 875 A.2d 210,
245 (N.J. 2005)).

Therefore, the two higher courts in the State
of New Jersey could not adhere to clear standards in
upholding the state constitution, with the Supreme
Court of New Jersey admitting that the state

administrative agencies should not have the final

judgment on claims of LAD, yet the Appellate
Division of the Superior Court of New Jersey affirms
the administrative decision on LAD claim against all
the provisions of the state law NJAC. 6A:9-8
Likewise, when the Appellate Division attempted to
uphold the teachers right the provisions of N.J.A.C
64:9-8.3, 8.4, and 8.6, the Supreme Court of New
Jersey dismissed the implied contact of provisional
teachers and _ reversed the previous opinion
Furthermore, when the OFAC of the Department of
Education of New Jersey scathed the Board and the
Superintendent of respondent for malfeasance, the
Supreme Court dismissed Appellant's petition for
certification and penalized him with the cost of

petition.

CONCLUSION

Wherefore, the Appellate Division of the
Supreme Court of New Jersey and the Supreme
Court of New Jersey are indifferent to the state and
federal constitution by their embarking of lawle
ad hoc, and standardless application of law, the
petition tor a writ of certiorari should he granted

SAK D PF. RL-HEWIE

(573° Meriline Avenue
Wear Paterson LJ O71?
Phone: (973) 237-0530

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2237%3A1. Public record. Not legal advice.