SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4952-17T4

JESSE DENKINS, CHERYL 

SHELTON, EMMA WARING, 

and MAXINE CAMPBELL, 

Plaintiffs-Appellants,

v.

STATE OPERATED SCHOOL 

DISTRICT OF THE CITY OF

CAMDEN,

Defendant-Respondent.

____________________________

Argued May 21, 2019 – Decided August 27, 2019

Before Judges Rothstadt, Gilson and Natali.

On appeal from the Superior Court of New Jersey, 

Law Division, Camden County, Docket No. L-0221-

17.

Andrew L. Schwartz argued the cause for appellants 

(Schwartz Law Group, LLC, attorneys; Andrew L. 

Schwartz and Robert M. Schwartz, on the briefs). 

Richard L. Goldstein argued the cause for respondent 

(Marshall Dennehey Warner Coleman & Goggin, 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2

A-4952-17T4

attorneys; Richard L. Goldstein, of counsel; Walter F. 

Kawalec, III, on the brief).

PER CURIAM

Plaintiffs Jesse Denkins, Cheryl Shelton, Emma Waring, and Maxine 

Campbell appeal from a June 29, 2018 Law Division order dismissing their 

complaint against defendant State Operated School District of the City of 

Camden (District) under Rule 4:6-2(e). 

The genesis of this case can be found in the June 2013 State takeover of 

the Camden public school system, which resulted in the District's creation and

substitution for the Camden City School District as the educational authority in 

Camden (the takeover). See N.J.S.A. 18A:7A-34 to -53.1. Plaintiffs were

tenured principals or vice principals hired by the District's predecessor who 

remained in the District's employ following the takeover. One of the District's

employees, who was prohibited from working by a New Jersey State 

Department of Education (DOE) regulation in force during the 2013-2014 

academic year, evaluated plaintiffs' effectiveness as school leaders and gave 

them poor ratings, which plaintiffs alleged led to their resignations. Plaintiffs 

did not learn that the evaluator was prohibited from working in the District

until after they resigned. Before they filed suit, however, the regulation at 

issue was repealed.
3

A-4952-17T4

In granting the District's motion to dismiss, the motion judge applied the 

general rule that repealed laws typically are treated as if they never existed.

The judge concluded that since the regulation prohibiting the evaluator from 

working was repealed, plaintiffs failed to state a claim upon which relief could 

be granted. Because we conclude that disregarding the law in force at the time 

of the evaluations would impermissibly interfere with plaintiffs' then-vested 

tenure rights, and would result in a manifest injustice, we reverse and remand.

I.

We review rulings on Rule 4:6-2(e) motions de novo, and apply the same 

standard that governs the motion judge's initial decision. Printing MartMorristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989). That standard 

"requires an assumption that the allegations of the pleading are true and 

affords the pleader all reasonable factual inferences." Seidenberg v. Summit 

Bank, 348 N.J. Super. 243, 249-50 (App. Div. 2002). If a "cause of action can 

be gleaned even from an obscure statement" in the pleading, the motion should 

be denied. Id. at 250. Construed in that light, the record before us establishes 

the following pertinent facts.

In preparation for the 2013-2014 academic year, the District sought to 

hire School Leader Trainers and Evaluators (evaluators) to evaluate the 
4

A-4952-17T4

effectiveness of its administrators, including plaintiffs, on a scale of one to 

four, with one being "ineffective," two being "partially effective," three being 

"effective," and four being "highly effective." One of the advertised 

requirements to work as an evaluator was "a valid school administrator license 

in the State of New Jersey." The District's lead evaluator was responsible for 

vetting "quality professionals who could actually do the [evaluation] work," 

and for reviewing the "credentials and experience" of applicants "prior to their 

being offered employment contracts" as evaluators. 

Angela Gilbert applied for a position as an evaluator on August 21, 

2013. In her application, and in response to the question "whether she 

maintained a New Jersey certificate," Gilbert stated that a "certificate is 

anticipated," but that she did "not currently possess a New Jersey certificate." 

The District offered Gilbert employment as an evaluator on September 25, 

2013. The offer was "contingent" upon the approval of the District's 

Superintendent "and a successful completion of background clearance, 

including that she possess appropriate New Jersey certificates and licenses." 

Gilbert accepted the offer, and her effective hire date was October 23, 2013. 

Throughout the 2013-2014 school year, DOE regulations provided that:

(a) A certificate of eligibility (CE) is a certificate 

with lifetime validity that the Board of Examiners may 
5

A-4952-17T4

issue to candidates who meet degree, academic and 

applicable test requirements.

. . . .

(c) The CE . . . authorizes the holder to seek 

employment. A holder of a CE . . . shall not assume 

responsibility for a job assignment until the holder has 

been issued a provisional certificate.

[N.J.A.C. 6A:9-6.4 (2013) (emphasis added).]

Gilbert had a CE when she was hired, but has never been issued a provisional 

certificate. Nevertheless, between December 2013 and June 2014, Gilbert 

evaluated Campbell, Denkins, and Waring once, and Shelton twice, and gave 

them all "partially effective" ratings. 

The District had previously advised plaintiffs that if they received less 

than an "effective" average score on three evaluations, at the end of the school

year they would be "subject to tenure charges of inefficiency in which the . . . 

District would seek to terminate their employment," which presented "risks" of 

"adverse consequences" to plaintiffs' educational certificates and pension 

benefits. Believing that the District "fully intended to pursue tenure charges of 

inefficiency against her with its attendant risks as to her pension benefits and 

educational certificates," Campbell resigned shortly after she received her 

evaluation from Gilbert. Shelton, Denkins, and Waring all received average 
6

A-4952-17T4

evaluations scores on their three observations that were "less than effective." 

The District told Waring that it "would file tenure charges of inefficiency" 

against her. "As a result of learning that tenure charges of inefficiency were to 

be filed, with its attendant risks as to her pension benefits and educational 

certificates," Waring resigned. Defendant filed tenure charges against Shelton 

and Denkins, who resigned for the same reasons as Waring and Campbell. 

As part of an "administrative recodification" process that divided 

N.J.A.C. 6A:9 into "four separate categories," the regulatory provision

prohibiting employees from working without a provisional certificate was 

repealed, and the prohibition itself was re-codified at N.J.A.C. 6A:9B-6.4(c)

effective August 4, 2014. See 46 N.J.R. 1743(a) (Aug. 4, 2014); N.J.A.C. 

6A:9B-6.4(c) (2014). Six months later, Gilbert was deposed in a contested 

tenure case where she "falsely testified" that she received a provisional school 

administrator certificate "probably in the fall of 2013," when, "in fact," she 

"knew or should have known that had she never received it." Plaintiffs first 

learned that Gilbert lacked a provisional certificate around the time of her 

deposition, and the District later "acknowledged" that Gilbert "had never been 

qualified to observe and evaluate its principals and vice principals." 
7

A-4952-17T4

N.J.A.C. 6A:9B-6.4 was repealed effective December 7, 2015, at which 

time N.J.A.C. 6A:9B-12.4(d) was adopted to provide that "[t]he effective date 

of provisional certificate issuance shall be the date on which the CE holder 

begins employment with the district board of education in a certificated 

position in accordance with N.J.S.A. 18A:26-2 and 18A:27-4a." See 47 N.J.R. 

1730(a) (July 20, 2015); 47 N.J.R. 2989(a) (Dec. 7, 2015). Three months later, 

plaintiffs filed a complaint in the United States District Court for the District 

of New Jersey against the District, its Superintendent, and Gilbert pursuant to 

42 U.S.C. § 1983, alleging deprivations of due process and asserting state and 

common law tort claims. 

In granting the defendants' motion to dismiss, the court held in an 

unpublished opinion that the District and its Superintendent were entitled to 

sovereign immunity under the Eleventh Amendment, and that Gilbert was 

entitled to qualified immunity on the federal claims,1then declined to exercise 

supplemental jurisdiction over the remaining state and common law claims. 

With respect to Gilbert, the court concluded that under New Jersey law, a 

 

1

 The qualified-immunity analysis has two prongs: 1) whether the facts "make 

out a violation of a constitutional right"; and 2) "whether the right at issue was 

'clearly established' at the time of defendant's alleged misconduct." Pearson v. 

Callahan, 555 U.S. 223, 232 (2009) (quoting Saucier v. Katz, 533 U.S. 194, 

201 (2001)). The district court based its decision on the first prong. 
8

A-4952-17T4

repealed regulation must be treated as if it never existed, so plaintiffs "cannot 

plausibly allege that there was a material misrepresentation, or even a 

misrepresentation at all" with respect to Gilbert's credentials since the 

regulation requiring a provisional certificate never existed. 2 Accordingly, the 

court held that plaintiffs resigned voluntarily and, as such, were not

unconstitutionally deprived of any property right. 

Plaintiffs appealed to the United States Court of Appeals for the Third 

Circuit, which affirmed, but with respect to Gilbert, did so based on the second 

qualified-immunity prong, i.e. whether a reasonable person in her position 

would have understood that her actions were unlawful. In deciding to affirm

on different grounds, the Court of Appeals explained that plaintiffs "may well 

make out a constitutional due process violation in having been deprived of a 

property interest in continued tenure[-]protected public employment . . . by the 

 

2

 The district court reached this conclusion by relying on the following portion 

of a sentence in Kemp by Wright v. State, County of Burlington, 147 N.J. 294 

(1997): "In this State it is the general rule that where a statute is repealed and 

there is no saving[s] clause or a general statute limiting the effect of the repeal, 

the repealed statute, in regard to its operative effect, is considered as though it 

had never existed . . . ." Id. at 311 (first alteration in original) (quoting 

Parsippany Hills Assocs. v. Rent Leveling Bd., 194 N.J. Super. 34, 42 (App. 

Div. 1984)). The portion of the sentence that the district court omitted from its 

analysis is an exception to the general rule, i.e., "except as to matters and 

transactions passed and closed." Ibid. (quoting Parsippany, 194 N.J. Super. at 

42). 
9

A-4952-17T4

District having obtained their involuntary resignations" through deception or 

misrepresentations of material fact, but declined to rule on that issue. Instead, 

the court exercised its discretion to begin the analysis with prong two, and 

concluded that Gilbert was entitled to qualified immunity because there was no 

precedent factually similar to plaintiffs' allegations sufficient to put her "on 

notice that evaluating the [p]laintiffs after the District knowingly hired her 

without a license might amount to a due process violation."

On January 13, 2017, while the appeal was pending before the Court of 

Appeals, plaintiffs filed a nine-count complaint in the Law Division against 

the District alleging: negligent and reckless hiring (counts one and two); 

negligent, reckless, and fraudulent misrepresentation (counts three, four, and 

five); negligent, reckless, and fraudulent filing of tenure charges (counts six, 

seven, and eight); and tortious interference with prospective economic 

advantage (count nine). After the Court of Appeals rendered its decision, 

defendant moved to dismiss plaintiffs' complaint under Rule 4:6-2(e). 

Following oral argument, during which plaintiffs' counsel conceded 

"[w]e wouldn't have a case" if Gilbert had a provisional certificate, the motion 

judge reserved decision, and plaintiffs moved to amend their complaint to add 

a claim for respondeat superior. In an April 12, 2018 order, the judge granted 
10 A-4952-17T4

defendant's motion to dismiss counts three through nine of plaintiffs' complaint

based primarily on the law of the case doctrine, but denied the motion with 

respect to plaintiffs' claims for negligent and reckless hiring. Accordingly, 

plaintiffs' motion to amend was not affected by that order. 

In a May 11, 2018 order, the motion judge denied plaintiffs' motion to 

amend, and the parties filed cross-motions for reconsideration of the judge's

several decisions. The judge initially denied all of the motions, but following 

a case management conference on June 25, 2018, the judge held a re-hearing 

on the motions for reconsideration and granted the District's motion, denied all 

of plaintiffs' motions, and dismissed the complaint. Plaintiffs now appeal from 

the June 29, 2018 order memorializing those decisions.

II.

On appeal, plaintiffs argue that the motion judge mistakenly applied the 

law of the case doctrine by overlooking exceptions to the general rule that 

repealed laws typically are treated as though they never existed. In 

Parsippany, we explained that:

In this State it is the general rule that where a statute 

is repealed and there is no saving clause or a general 

statute limiting the effect of the repeal, the repealed 

statute, in regard to its operative effect, is considered 

as though it had never existed, except as to matters 

and transactions passed and closed. DiAngelo v. 
11 A-4952-17T4

Keenen, [112 N.J.L. 19, 20–21 (Sup. Ct. 1933)], aff'd 

o.b. [115 N.J.L. 507 (E. & A. 1935)]. Furthermore, it 

is settled law in this State that, unless vested rights are 

involved, the law in effect at the time of the 

disposition of the cause by an appellate court governs, 

rather than the law in effect at the time the cause was 

decided by the trial court. Staudter v. Elter, 64 N.J. 

Super. 432, 436, 166 A.2d 394 (App. Div. 1960). 

[Parsippany, 194 N.J. Super. at 42-43.]

 Plaintiffs maintain the general rule discussed in Parsippany is 

inapplicable here because their evaluations are matters or transactions "passed 

and closed," and their "vested rights" of tenure are so "involved" in this 

controversy that "the rules in effect during the 2013-14 school term should 

govern this dispute." Plaintiffs also argue that it would result in a 

"fundamental unfairness" to give "retroactive application" to the "changes to 

laws" that occurred after their evaluations and resignations. Alternatively, 

plaintiffs contend that they state a cause of action even under the current 

regulations.

According to defendant, however, the motion judge correctly adopted 

the federal district court's reasoning because this case is still being litigated,

and thus is not a matter or transaction "passed and closed." In addition,

defendant contends that whether plaintiffs had "vested right[s] of tenure" is 

"irrelevant" because plaintiffs "had no vested right in having their evaluations 
12 A-4952-17T4

performed by specific evaluators." Finally, defendant argues that plaintiffs are 

not only precluded from relying on the law in force during the 2013-2014 

academic year, but that plaintiffs waived any claims they may have under the 

current regulations.

III.

Under the law of the case doctrine, "decisions of law made in a case 

should be respected by all other lower or equal courts during the pendency of 

that case." Brown v. Twp. of Old Bridge, 319 N.J. Super. 476, 494 (App. Div. 

1999) (quoting Lanzet v. Greenberg, 126 N.J. 168, 192 (1991)). The doctrine

is a "discretionary rule of practice and not one of law," ibid., it is "restricted to 

preventing relitigation of the same issue in the same suit," ibid. (quoting 

Slowinski v. Valley Nat. Bank, 264 N.J. Super. 172, 180–81 (App. Div. 

1993)), and it "should not be used to justify an incorrect substantive result." 

Hart v. City of Jersey City, 308 N.J. Super. 487, 498 (App. Div. 1998). 

As a threshold matter, the federal district court's decision was not 

binding on the motion judge under the law of the case doctrine. See Lusardi v. 

Curtis Point Prop. Owners Ass'n, 86 N.J. 217, 226 n.2 (1981) (noting that the 

law of the case doctrine "applies only to proceedings prior to the entry of a 

final judgment. After that, rules of res judicata determine whether a prior 
13 A-4952-17T4

determination of law or fact is binding."); see also Ayers v. Jackson Twp., 106 

N.J. 557, 611-12 (1987) (holding the trial court's decision to "re-examine[] 

[an] issue" decided in "a related case in the federal district for the District of 

New Jersey" was "not improper"), aff'g in part and rev'g in part on other 

grounds, 202 N.J. Super. 106 (App. Div. 1985).3 In addition, because the 

United States Court of Appeals explicitly decided to affirm on different 

grounds than the federal district court did with respect to Gilbert, it was error

to apply the "law of the case" doctrine to the federal district court's decision.

Further, whether the motion judge abused his discretion in adopting the 

federal district court's reasoning depends on whether that reasoning was 

adopted "to justify an incorrect substantive result." See Hart, 308 N.J. Super. 

at 498. The substantive result here is that plaintiffs were precluded from 

establishing that defendant permitted Gilbert to work in violation of the 

regulatory prohibition against "assum[ing] responsibility for a job assignment" 

without a "provisional certificate," see N.J.A.C. 6A:9-6.4(c) (2013), because 

the judge determined that prohibition never existed. Plaintiffs conceded in the 

 

3

 Other than the law of the case doctrine, the District has not alleged that the 

federal litigation barred plaintiffs from filing suit in state court by reason of 

collateral estoppel, res judicata, the entire controversy doctrine, or any other 

similar legal principle. 
14 A-4952-17T4

proceedings below that they "wouldn't have a case" if Gilbert had a provisional 

certificate, and they do not retreat from that concession on appeal. Similarly, 

defendant concedes that a violation of N.J.A.C. 6A:9-6.4(c) would have 

provided plaintiffs with a defense to the tenure charges.4 Thus, the question 

before us is whether the motion judge, by treating the regulation as if it never 

existed, improperly precluded plaintiffs from claiming that Gilbert lacked the

credentials necessary to work during the 2013-2014 academic year.

As noted, the parties dispute whether this case involves a matter or

transaction "passed and closed," see Parsippany, 194 N.J. Super. at 42 (citing 

DiAngelo, 112 N.J.L. 20-21), an issue which plaintiffs raised before the 

motion judge, but which the judge did not address in rendering his decision. 

Defendant contends that Kemp supports its position that the present 

controversy does not involve a matter or transaction "passed and closed." 

In Kemp, a health official working for the defendant municipality 

injected a rubella vaccine into the plaintiff's mother while she was pregnant 

with plaintiff. Id. at 297-98. At the time of the injection, the health official 

 

4

 The defense referred to by defendant is found in N.J.S.A. 18A:6-17.2(d),

which provides that "[t]he board of education shall have the ultimate burden of 

demonstrating to the arbitrator that the statutory criteria for tenure charges 

have been met."
15 A-4952-17T4

was entitled by statute to good-faith immunity. Id. at 297, 304. Plaintiff was 

born with health problems traceable to the injection, and when he was six

months old, the good-faith immunity statute was repealed. Id. at 298, 304. 

The Court held that because the plaintiff "was less than six months old when 

the statute was repealed," the case could not "be regarded as a transaction 

'passed and closed.'" Id. at 311 (quoting Parsippany, 194 N.J. Super. at 42). 

Thus, because the infant plaintiff had a putative tort claim when the statute 

was repealed, the health official who administered the rubella vaccine could 

not invoke the good-faith immunity defense granted by the repealed statute. 

Applying that rationale here, because plaintiffs had a putative tort claim when 

N.J.A.C. 6A:9B-6.4(c) was repealed, this case would not involve a matter or 

transaction "passed and closed."

However, the rule that repealed statutes are disregarded except as to 

matters and transactions passed and closed "is subordinate to the fundamental 

rule of construction that the court shall ascertain and give effect to the 

intention or purpose of the Legislature." DiAngelo, 112 N.J.L. at 21; see also

Kemp, 147 N.J. at 311-12 (determining there was no transaction passed and 

closed, then proceeding to discuss the Legislature's "most likely" intent). 

Further, the "acquisition of vested rights" gives rise to "an exception to the 
16 A-4952-17T4

general rule which permits legislative bodies to . . . repeal laws." State v. 

Mayor of Jersey City, 49 N.J.L. 303, 307 (Sup. Ct. 1887); see also State 

Troopers Fraternal Ass'n of New Jersey, Inc. v. State, 149 N.J. 38, 54 (1997) 

("In analyzing whether a statute or regulation may apply retroactively, a court 

must determine, first, whether the Legislature or agency intended that the 

statute or regulation apply retroactively, and, if so, whether retroactive 

application would work either a manifest injustice or an unconstitutional 

interference with a vested right."); N.J.S.A. 52:14B-2 (defining 

"[a]dministrative rule" to include the "repeal of any rule").

As noted, the only expression of legislative intent for repealing N.J.A.C.

6A:9-6.4 (2013) was the intent to re-locate the same provisions at a different 

section of the administrative code during an "administrative recodification" 

process. 46 N.J.R. 1743(a) (Aug. 4, 2014); see N.J.A.C. 6A:9B-6.4(c) (2014).

When a law is simultaneously repealed and re-enacted, the law has continuing 

force. Randolph v. Larned, 27 N.J. Eq. 557 (E. & A. 1876).

Further, the DOE "propose[d] to repeal N.J.A.C. 6A:9B-6 because 

definitions for the types of certificates" were "proposed for inclusion at 

N.J.A.C. 6A:9-2.1 in a separate rulemaking." 47 N.J.R. 1730(a) (July 20, 

2015). However, the prohibition against working without a provisional 
17 A-4952-17T4

certificate was not included in N.J.A.C. 6A:9-2.1. Instead, N.J.A.C. 6A:9B12.4(d) was adopted to provide that "[t]he effective date of provisional 

certificate issuance shall be the date on which the CE holder begins 

employment with the district board of education in a certificated position in 

accordance with N.J.S.A. 18A:26-2 and 18A:27-4[(a)]." Ibid. The stated 

purpose for this new rule was to "align" the "effective date of the provisional 

certificate issuance" for school administrator CE holders "with the same 

provisional requirements for teachers at N.J.A.C. 6A:9B-8.3." 47 N.J.R. 

1730(a) (July 20, 2015). Although the content of this new rule contemplates 

retroactivity, in the sense that it retroactively fixes the effective date of the 

issuance of provisional certificates, there is no indication that the implicit 

change in when certain CE holders may begin job performance was intended to 

affect CE holders like Gilbert who never obtain a provisional certificate. 

Moreover, plaintiffs maintain that their "vested rights of tenure protected 

[their] employment from termination absent tenure charges or indictment," and 

claim "vested rights" are sufficiently "involved" here that "the rules in effect 

during the 2013-14 school term should govern this dispute." We agree.

The term "'vested right' encompasses a fixed interest entitled to 

protection from state action." Twiss v. State, Dep't of Treasury, Office of Fin. 
18 A-4952-17T4

Mgmt., 124 N.J. 461, 470 (1991). "[T]enure is a statutory right imposed upon 

a teacher's contractual employment status," the purpose of which is to give job 

security to educators by protecting them "against removal for unfounded, 

flimsy, or political reasons." Zimmerman v. Bd. of Ed. of City of Newark, 38 

N.J. 65, 71-72 (1962). Simply put, tenure rights are entitled to protection from 

state action, and plaintiffs' tenure rights vested prior to their evaluations. 

Resolving all reasonable inferences from plaintiffs' allegations in their 

favor, plaintiffs forfeited their vested right to challenge Gilbert's evaluation

and any ensuing tenure charges5 because they believed the risk to their pension 

benefits and educational certificates attendant to losing a contested tenure case

outweighed any defense they might have had to the charges. The District 

concedes that a violation of N.J.A.C. 6A:9-6.4(c) would have furnished at least 

a plausible defense to tenure charges,6and plaintiffs alleged the District made 

factual representations that led them to believe that defense was unavailable.

Plaintiffs also alleged that they relied on the District's representations to 

their detriment, and it is reasonable to infer that the alleged representation 

 

5

 See N.J.S.A. 18A:6-10 (entitling tenured faculty to a hearing on charges of 

inefficiency prior to dismissal).

6

 See supra p.14 n.4.
19 A-4952-17T4

materially affected plaintiffs' decisions as to whether to enforce or forfeit their 

vested right to challenge the charges. Thus, the only remaining issue as to 

whether plaintiffs stated a claim upon which relief can be granted is whether 

the District made those factual representations knowing that they were false. 

See Jewish Ctr. of Sussex Cty. v. Whale, 86 N.J. 619, 624 (1981) ("A 

misrepresentation amounting to actual legal fraud consists of a material 

representation of a presently existing or past fact, made with knowledge of its 

falsity and with the intention that the other party rely thereon, resulting in 

reliance by that party to his detriment."). 

Under these circumstances, to hold, as the motion judge did, that 

plaintiffs may not demonstrate the falsity of the District's factual 

representations would impermissibly subject plaintiffs' then-vested tenure 

rights to improper state action. We decline to do so.

7

 As noted, 

notwithstanding the retroactive content of the regulation, the regulatory history 

does not reveal an intent for the change in law to apply to a person in Gilbert's 

circumstances. In addition, precedent supports the view that if a person who is 

 

7

 Accordingly, we reject the District's contention that the time-of-decision rule 

referenced in Parsippany supports the motion judge's determination, since that 

rule is inapplicable when "vested rights are involved . . . ." See Parsippany, 

194 N.J. Super. at 42-43.
20 A-4952-17T4

disqualified by law from working without certain credentials nevertheless 

performs the work, a subsequent repeal of the disqualifying law does not alter 

the fact that the person was, in fact, disqualified from working while the law 

was in force. See Vaughn v. Hankinson's Adm'r, 35 N.J.L. 79, 80-82 (Sup. Ct. 

1871).

8

Further, if a "party relied, to his or her prejudice, on the law that is now 

to be changed as a result of the retroactive application of the statute, and . . .

the consequences of this reliance are so deleterious and irrevocable that it

would be unfair to apply the statute retroactively," applying the change in law 

retroactively would result in a manifest injustice. See Gibbons v. Gibbons, 86 

N.J. 515, 523-24 (1981). After reviewing the pleadings, we conclude that 

plaintiffs have sufficiently alleged detrimental reliance on the prohibition 

against working without a provisional certificate. We are convinced it would 

work a manifest injustice to apply the changes in the administrative code

retroactively, as doing so would denigrate the value of tenure rights and permit

allegations of fraud to be unaddressed.

 

8

 See also In re Gadbois, 786 A.2d 393, 397 (Vt. 2001) (stressing "this case 

deals with standards of professional regulation that are no longer in force"); cf.

Teas v. Eisenlord, 253 N.W. 795, 797 (Wis. 1934) (whether a defendant's 

"conduct measures up to the standard of ordinary care is to be determined by 

the circumstances present at the time of his [or her] action").
21 A-4952-17T4

In light of our decision, we do not reach plaintiffs' alternative claim that 

a provisional administrative certificate is a prerequisite to performance of job 

duties under the current regulations. Further, the District's argument that 

plaintiffs waived this issue is meritless as that contention is belied by the 

record. In addition, with respect to defendant's passing statements in its brief 

that plaintiffs failed to exhaust their administrative remedies, to the extent 

defendant sought to raise that argument on appeal, the issue is not properly 

before us for two reasons. 

First, the District did not raise that argument below, but instead argued 

that plaintiffs should have exhausted the remedies purportedly available 

through the Worker's Compensation Act, an argument the motion judge

rejected and which defendant does not reassert on appeal. Second, by making 

only passing references in its appellate brief to plaintiffs' purported failure to 

exhaust administrative remedies, defendant did not properly raise the issue on 

appeal. See Mid-Atl. Solar Energy Indus. Ass'n v. Christie, 418 N.J. Super. 

499, 508 (App. Div. 2011); R. 2:6-2(a)(6); R. 2:6-4(a). Nonetheless, nothing 

in this opinion precludes the District from arguing in ensuing proceedings that 

plaintiffs failed to exhaust their administrative remedies prior to filing suit, or 

from raising any other argument. 
22 A-4952-17T4

Reversed and remanded for further proceedings consistent with this 

opinion. We do not retain jurisdiction.