Packer v. Board of Education

BERDON, J.,

concurring in the result. I agree with Justice Palmer’s concurring opinion that we should sustain the judgment of the trial court on the ground that the defendant, the board of education of the town of Thomaston, “failed to prove that the [named] plaintiff’s drug possession was such as to markedly [interrupt] *121or severely [impede] the day-to-day operation of [the] school, the standard that must be met to justify expulsion for off-campus conduct under the seriously disruptive of the educational process requirement of [General Statutes] § 10-233d (a) (1).” (Internal quotation marks omitted.) I also agree with Justice Palmer that we should not reach the issue of whether § 10-233d is constitutional as applied to this case. For the following reasons, however, I would also not reach the issue of whether § 10-233d is constitutional on its face.

First, whether § 10-233d is constitutional, facially or as applied, is a moot issue with respect to this case. After the trial court rendered its decision in this case, the legislature recognized that § 10-233d was constitutionally infirm. On June 4, 1998, the legislature enacted No. 98-139, § 2, of the 1998 Public Acts (P.A. 98-139), which amended § 10-233d, in an effort to clarify when conduct is to be considered “seriously disruptive of the educational process.” P.A. 98-139, § 2, which was effective upon passage, added the following language to § 10-233d (a) (1): “In making a determination as to whether conduct is seriously disruptive of the educational process, the board of education or impartial hearing board may consider, but such consideration shall not be limited to: (a) whether the incident occurred within close proximity of a school; (b) whether other students from the school were involved or whether there was any gang involvement; (c) whether the conduct involved violence, threats of violence or the unlawful use of a weapon, as defined in section 29-38, and whether any injuries occurred; and (d) whether the conduct involved the use of alcohol.” This court previously has held that “[w]hen . . . events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, [an issue] has become moot.” (Internal quotation marks omitted.) Loisel v. Rowe, 233 Conn. 370, 378, 660 A.2d *122323 (1995). “Mootness implicates the subject matter jurisdiction of this court.” Sadlowski v. Manchester, 206 Conn. 579, 583, 538 A.2d 1052 (1988).

Second, by reaching the constitutional issues in this case we fail to follow our long-standing “policy of self-restraint and the basic judicial duty to eschew unnecessary determinations of constitutional questions.” Negron v. Warden, 180 Conn. 153, 166, 429 A.2d 841 (1980). Notwithstanding its constitutional excursion, the trial court concluded that even if § 10-233d was constitutional, the named plaintiffs possession of marijuana off school grounds was not seriously disruptive of the educational process.

Third, at the time of the expulsion, the named plaintiff was a senior in high school. The defendant specifically provided in its order of expulsion that the expulsion be expunged from the named plaintiffs record at the time of graduation pursuant to § 10-233d (f). In addition, the trial court enjoined the defendant from enforcing the expulsion order as well as the other disciplinary actions pertaining to school activities. I take judicial notice that the school year has now ended. Because, in all probability, the named plaintiff has graduated from high school and the record of expulsion has been expunged, there is nothing left before the trial court to be adjudicated except the possibility of money damages. At best, the majority opinion with respect to the constitutional issue is an advisory opinion and, therefore, beyond the jurisdiction of this court. “We have consistently held that we do not render advisory opinions. . . . Justiciability requires . . . that there be an actual controversy between or among the parties to the dispute .... [WJhere the question presented is purely academic, we must refuse to entertain the appeal.” (Citations omitted; internal quotation marks omitted.) Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 240 Conn. 1, *1236-7, 688 A.2d 314 (1997). “[U]nder the law of this state the courts may not be used as a vehicle to obtain judicial opinions on points of law.” (Internal quotation marks omitted.) Id.

Finally, there exists an additional good reason why this court should not reach the constitutional issues, facial or as applied, in this case. In the wake of the trial court’s opinion in this case, the legislature adopted P.A. 98-139. Although that enactment authorizes the defendant to take into account certain specific considerations when determining “whether conduct is seriously disruptive of the educational process,” including “whether the conduct involved the use of alcohol,” P.A. 98-139 does not specify the possession of marijuana as a factor to be considered. “If an amendment is enacted soon after controversies arise regarding the interpretation of the prior act, it is logical to regard the amendment as a legislative interpretation of the original act . . . .” (Internal quotation marks omitted.) Turner v. Turner, 219 Conn. 703, 717, 595 A.2d 297 (1991). In this case, the legislature’s interpretation of its prior enactment emphasizes certain conduct that presumably has the greatest potential to seriously threaten the educational process. Notwithstanding the legislature’s omission of the possession of marijuana from P.A. 98-139 — the conduct that sparked the controversy and prompted the amendment of § 10-233d in the first instance — the majority gratuitously posits that it does not mean to suggest that the possession of marijuana off school grounds could not be the basis of discipline. Although the list of criteria added by P.A. 98-139 is not exclusive, I would leave this issue to another day.

Accordingly, I concur in the result.