NJAC 1:1-12.6 Emergency relief

NJAC

1:1-12.6 Emergency relief

		(a) Where authorized by law and where irreparable harm will result without an expedited decision granting or prohibiting some action or relief connected with a contested case, emergency relief pending a final decision on the whole contested case may be ordered upon the application of a party.

		(b) Applications for emergency relief shall be made directly to the agency head and may not be made to the Office of Administrative Law.

		(c) An agency head receiving an application for emergency relief may either hear the application or forward the matter to the Office of Administrative Law for hearing on the application for emergency relief. When forwarded to the Office of Administrative Law, the application shall proceed in accordance with (i) through (k) below. All applications for emergency relief shall be heard on an expedited basis.

		(d) The moving party must serve notice of the request for emergency relief on all parties. Proof of service will be required if the adequacy of notice is challenged. Opposing parties shall be given ample opportunity under the circumstances to respond to an application for emergency relief.

		(e) Where circumstances require some immediate action by the agency head to preserve the subject matter of the application pending the expedited hearing, or where a party applies for emergency relief under circumstances which do not permit an opposing party to be fully heard, the agency head may issue an order granting temporary relief. Temporary relief may continue until the agency head issues a decision on the application for emergency relief.

		(f) When temporary relief is granted by an agency head under circumstances which do not permit an opposing party to be fully heard, temporary relief shall:

		1. Be based upon specific facts shown by affidavit or oral testimony, that the moving party has made an adequate, good faith effort to provide notice to the opposing party, or that notice would defeat the purpose of the application for relief;

		2. Include a finding that immediate and irreparable harm will probably result before adequate notice can be given;

		3. Be based on the likelihood that the moving party will prevail when the application is fully argued by all parties;

		4. Be as limited in scope and temporary as is possible to allow the opposing party to be given notice and to be fully heard on the application; and

		5. Contain a provision for serving and notifying all parties and for scheduling a hearing before the agency head or for transmitting the application to Office of Administrative Law.

		(g) Upon determining any application for emergency relief, the agency head shall forthwith issue and immediately serve upon the parties a written order on the application. If the application is related to a contested case that has been transmitted to Office of Administrative Law, the agency head shall also serve the Clerk of Office of Administrative Law with a copy of the order.

		(h) Applications to an agency head for emergent relief in matters previously transmitted to the Office of Administrative Law shall not delay the scheduling or conduct of hearings, unless the presiding judge determines that a postponement is necessary due to special requirements of the case, because of probable prejudice or for other good cause.

		(i) Upon determining an application for emergency relief, the judge forthwith shall issue to the parties, the agency head and the Clerk a written order on the application. The Clerk shall file with the agency head any papers in support of or opposition to the application which were not previously filed with the agency and a sound recording of the oral argument on the application, if any oral argument has occurred.

		(j) The agency head‘s review of the judge‘s order shall be completed without undue delay but no later than 45 days from entry of the judge‘s order, except when, for good cause shown and upon notice to the parties, the time period is extended by the joint action of the Director of the Office of Administrative Law and the agency head. Where the agency head does not act on review of the judge‘s order within 45 days, the judge‘s order shall be deemed adopted.

		(k) Review by an agency head of a judge‘s order for emergency relief shall not delay the scheduling or conduct of hearings in the Office of Administrative Law, unless the presiding judge determines that a postponement is necessary due to special requirements of the case, because of probable prejudice or for other good cause.

		Administrative Procedures

		CASE NOTES:

		Student who was precluded from participating in graduation ceremonies following his suspension for possession of illegal drugs was not entitled to emergent relief because, although the student could show that he would be irreparably harmed by not participating, he failed to also show that he had the legal right to participate, that he had a likelihood of success on the merits of his underlying appeal, or that the balance of interests and equities under the circumstances rested in his favor (modifying 2009 N.J. AGEN LEXIS 470). Nabel v. Bd. of Educ. of Hazlet, OAL Dkt. No. EDU 8026-09, 2009 N.J. AGEN LEXIS 841, Emergent Relief Decision (June 24, 2009).

		Initial Decision (2009 N.J. AGEN LEXIS 464) adopted, which found that, while denial of attendance at graduation exercises generally did not constitute irreparable harm, the student may suffer irreparable harm if, after a plenary hearing, it was subsequently determined that he had, in fact, earned a passing grade in his eleventh-grade English class, as he contended. The Board did not deny that the student‘s class folder was missing, nor did it introduce the school‘s attendance records or so much as an affidavit or certification from the teacher or any other witness addressing the student‘s contentions; therefore, since it may yet be proven that the teacher made a promise to the student and/or that the student did earn a final passing grade, the denial of attendance would have, under the facts of this case, caused irreparable harm. Tomlin v. Bd. of Educ. of Lower Cape May Reg‘l School Dist., OAL Dkt. No. EDU 4952-09, 2009 N.J. AGEN LEXIS 921, Emergent Relief Decision (June 22, 2009).

		Parents of an autistic child, with severe language disorder and classified as preschool disabled, failed to satisfy all of the criteria for the granting of emergent relief relative to the change in speech therapy; however, as the board of education admitted that it had not provided the occupational therapy required by the child‘s IEP, the motion for emergent relief was granted as to those services. J.W. and E.W. ex rel. B.W. v. Tinton Falls Bd. of Educ., OAL DKT. NO. EDS 2200-08, 2008 N.J. AGEN LEXIS 165, Emergent Relief Decision (March 24, 2008).

		Adult classified special education student with disciplinary problems was precluded from attending Senior Prom. P.P. v. Westwood Board, 95 N.J.A.R.2d (EDS) 165.