Legal Memorandum: Procedure for Revoking/Suspending a Certificate

Issue: Is a teacher’s right to due process violated when the charges are not disclosed prior to the hearing on a revocation or suspension of certificates?

Area of Law: Administrative Law, Administrative Law & Regulation (Federal and State), Constitutional Law
Keywords: Revocation or suspension of certificates; Teacher's right to due process
Jurisdiction: New Jersey
Cited Cases: 77 N.J. 145; 175 N.J. 309; 132 N.J. 546
Cited Statutes: N.J.A.C. 6A:9-17.7
Date: 11/01/2009

When commencing a revocation/suspension proceeding, the State Board of Examiners must “issue an order to show cause that states the specific charges that form the basis of the revocation or suspension proceeding.”  N.J.A.C. 6A:9-17.7 (emphasis added).  The requirement that the specific charges be set forth in the order to show cause gives teaching and administrative staff members basic due process rights and ensures that the State does not engage in what amounts to a “fishing expedition.” 

A fundamental right protected by the Due Process Clause is the right to be informed of the specific charges and a fair opportunity to rebut them. Nicoletta v. North Jersey Dist. Water Supply Comm’n, 77 N.J. 145, 162 (1978). “At a minimum, due process requires that a party in a judicial hearing receive ‘notice defining the issues and an adequate opportunity to prepare and respond.'”  McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559 (1993) (quoting Nicoletta).  Further, “[t]here can be no adequate preparation where the notice does not reasonably apprise the party of the charges, or where the issue litigated at the hearing differ substantially from those outlined in the notice.” Nicoletta, 77 N.J. at 162. See also H.E.S. v. J.C.S., 175 N.J. 309 (2003) (due process was violated when defendant received domestic-violence complaint less than 24 hours before trial was to start, and finding of domestic violence was based on allegation not set forth in complaint; court granted […]

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