What To Expect At An OAL Hearing
This guide has been prepared by the Office of Administrative Law (OAL) to explain the administrative hearings process in New Jersey. It is important to remember that the information presented in this guide is general and is intended to cover the usual situation. The explanations do not cover all of the possible situations that may arise in a case. If you have more questions, consult the Uniform Administrative Procedure Rules that are found in Title 1, Chapter 1 of the New Jersey Administrative Code. (The legal citation is N.J.A.C. 1:1-1.1 et seq.)
The OAL is an independent State agency that provides an independent and neutral hearing. Requests for hearings are initially sent to the appropriate state agency; that agency then sends the case to OAL for the hearing itself. An administrative law judge (ALJ) employed by the OAL hears the case and writes the initial decision. In nearly all instances, the initial decision is then forwarded to the agency that sent the case to the OAL. The head of that agency reviews the initial decision and has the right to adopt, reject or modify what the ALJ decided. The agency head's decision is the final decision. In hearings regarding special education issues, the ALJ's decision is final; there is no review by any agency head.
Appeal of a final decision is available in the judicial branch.
When a case is sent to the OAL for a hearing, a Notice of Filing or a Notice of Filing and Hearing is mailed to the parties. This Notice indicates that the agency has sent the request for hearing to the OAL; it also contains other information that can help one prepare for the hearing, as well as a contact telephone number at the OAL. The Notice also contains a brief explanation of the basic issues that will be discussed at the hearing. The docket number (OAL DKT. NO.) that is used to identify the case throughout the OAL administrative process appears at the top right side of the Notice of Filing.The OAL is an independent State agency that provides an independent and neutral hearing. Requests for hearings are initially sent to the appropriate state agency; that agency then sends the case to OAL for the hearing itself. An administrative law judge (ALJ) employed by the OAL hears the case and writes the initial decision. In nearly all instances, the initial decision is then forwarded to the agency that sent the case to the OAL. The head of that agency reviews the initial decision and has the right to adopt, reject or modify what the ALJ decided. The agency head's decision is the final decision. In hearings regarding special education issues, the ALJ's decision is final; there is no review by any agency head.
Appeal of a final decision is available in the judicial branch.
If appropriate to the subject matter of the case, a prehearing conference may be scheduled. The parties or their representatives and the ALJ will discuss the issues presented and the procedures that will be used at the hearing. The possibility of settling the case may also be discussed. The prehearing conference is usually conducted by telephone conference call. The Notice of Prehearing Conference indicates the time, date, and place of the prehearing conference, the name of the ALJ who will conduct the conference, whether it will be in person or by telephone, and what will be discussed at the conference. Any party may request a prehearing conference by letter or telephone call to the assigned judge, or if not yet advised of the name of the assigned judge, to the Clerk's office.
If the date of the hearing or prehearing conference is a problem, an adjournment must be requested immediately. N.J.A.C. 1:1-9.6 explains the adjournment process. An adjournment will only be granted if there is a very good reason to do so that could not have been reasonably foreseen or prevented. Contact the OAL at the phone number listed on the Notice to request an adjournment. If the parties have already appeared before an ALJ, an adjournment request is made directly to the ALJ. The other party or parties to the case should be contacted to see if they will agree to an adjournment and to possible alternate dates before the OAL is contacted. When the OAL is notified, the party requesting an adjournment will be asked the reason for the request, whether or not the other parties have been contacted, and whether they agree to the adjournment. If the request is granted, a new date will be set for the conference or hearing. If there is a dispute regarding a request for adjournment, it may be necessary for the judge to hold a telephone conference with all parties to resolve the request.
Discovery, or the gathering of information about the case prior to the hearing, should begin immediately. Discovery in OAL hearings is explained in N.J.A.C. 1:1-10.1 through 1:1-10.6.
Through discovery you can ask the opposing party to respond to written questions (called interrogatories) or to provide copies of documents. To do so, simply deliver, in person or by mail, the request for answers to interrogatories or for copies of documents to the other party. If a party refuses to respond or if the request for discovery appears to be unfair, the ALJ may need to be notified. The matter may be resolved with a telephone conference call between the ALJ and all of the parties.
If you receive a request for discovery, you must either provide the information within fifteen days of receiving the request or object to the request by conference call within ten days of receiving the request. If you do not receive a response to your discovery request, you must notify the ALJ and other parties by telephone conference call within ten days of the date that you should have gotten the response. If you receive an inadequate response to your discovery request, you must notify the ALJ and other parties by telephone conference call within ten days of receiving the response.
If a conference call is not conducted within these time limits, the right to obtain information or to object to a discovery request may be forfeited. In any case, all discovery must be completed ten days before the first hearing date.
Subpoenas N.J.A.C. 1:1-11
If the testimony of a person who has firsthand knowledge of something important to the case is necessary, he or she must attend the hearing and testify. If he or she will not attend voluntarily, a subpoena must be issued. A subpoena is a legal document that orders a person to appear at the hearing and to give testimony. The subpoena form and instructions may be found at this website. Subpoenas are delivered to the witnesses either in person or by sending them certified mail (return receipt requested). In either case, a record of the delivery should be maintained so that there is proof that the subpoena was received by the person. The subpoena should be delivered immediately in order to give the witness time to get ready for the hearing. A witness fee must be included with the subpoena. If the witness lives in the county where the hearing will be held, the fee is $2.00 a day. If the witness lives in another county, the fee is an additional $2.00 for every thirty miles the witness must travel. If a party needs the testimony of a person who is an expert, such as a doctor, an additional fee may be required.A person who is subpoenaed and feels that his or her presence at the hearing is unnecessarily or unfairly required can object to the ALJ with notice to the parties. An ALJ will consider the objection and decide whether that person must obey the subpoena. Other questions about the subpoena, such as whether you have to be there exactly at the time specified, are directed to the person who requested the subpoena. His or her name and telephone number appear on the subpoena.
The ALJ may be asked by the parties to make a number of decisions before the hearing begins and during the hearing itself. For example, the ALJ may be asked to change the hearing date, to decide whether a person must obey a subpoena, or to sustain an objection to a discovery request. The technical term for all these requests is a "motion." A motion should be made in writing to an ALJ with a copy to the other parties. A motion does not have to be in any special form; a letter is sufficient. Motions during the course of the hearing are usually made orally. More information about motions can be found in N.J.A.C. 1:1-12.1 through 1:1-12.7.
An attorney may represent a party or a party may present the case him or herself. Additionally, in some cases a non-lawyer may assist a party at the hearing. Some examples are, a paralegal or assistant employed by legal services; a principal of a close corporation; a union representative in a civil service case; and an individual who is permitted by federal law to appear in a Special Education case. In Family Development, Medical Assistance, and Youth and Family Services cases the non-lawyer can ask to be allowed to appear on the day of the hearing. In all other cases, the non-lawyer must complete a Notice of Appearance/Application form [available on this website] and return it to the OAL at least ten days before the hearing.
In preparing for a hearing, it may be helpful to make a list of all information that relates to the case and that needs to be presented. Bring the originals and two copies of all documents to the hearing so that one can be given to the other party and one to the ALJ.
Persons who have firsthand knowledge of the case should be asked to attend the hearing to testify. (see subpoenas above) Please note that an expert witness will generally receive a fee.
OAL has hearing rooms in Newark, Trenton and Atlantic City. Every attempt will be made to schedule your hearing at a convenient location. The Notice of Hearing will tell you where the hearing will be held. Directions to the three offices of the OAL are available on this website.
The Hearing
In each case, the ALJ decides who will present evidence first and how the hearing will proceed. This decision will be based on which party is requesting the action, on which party has the most evidence, and on what would be the most practical and orderly way to develop the issues in the case.
In some cases, the ALJ will see if a settlement of the case is possible before the hearing begins. This discussion will usually take place off the record; that is, it is not recorded by tape or by a court reporter. If settlement cannot be reached, the hearing will continue.
Before the actual presentation of the case begins, the ALJ will explain the procedures that will be followed and also state what the hearing is about. A party confused about the procedures or about the ALJ's statements concerning the case, should let the ALJ know and ask questions.
The ALJ will allow each party to present witnesses and other evidence. The ALJ will also permit each party to question the other party's witnesses. This is called cross-examination. All relevant evidence may be presented, including hearsay, which is, generally, statements repeated by a witness that were made by another person. The ALJ may, however, limit presentation of evidence if it is repetitive, overly time-consuming, abusive, too prejudicial, or irrelevant.
A record of everything that is said will be made at the hearing, so it is important that everyone speak in a loud, clear voice. The hearing will either be tape recorded or transcribed by a stenographer.
The ALJ is an independent, impartial person with no personal stake in the outcome of the case. The ALJ will attempt to get at the truth of the matter and to understand and fairly evaluate the position of each party. In doing so, the ALJ may ask questions of any participant in the hearing.
In some cases, the ALJ will ask for additional documents to be submitted after the hearing. It is also possible that the ALJ will ask for a written argument, or brief, after the hearing. This written argument can be in the form of a letter and simply states the factual and legal reasons that support a position on the case.
If the ALJ does not ask for additional documents or for briefs, the case ends on the last day of the hearing. If the ALJ asks for additional documents or briefs, a date will be set by which those documents must be received. The case will end on that date. The ALJ will not consider documents received after this date. A party cannot supply additional information, either to the ALJ or the agency head once the case ends. Prior to the issuance of the ALJ's decision, a motion may be filed to reopen the record, however, such motions are granted only for extraordinary circumstances. The decision usually is due within forty-five days from the date the case ended. In some cases the decision is due in less than forty-five days, if so, the ALJ will indicate the due date at the end of the hearing.
If a settlement is reached before the hearing begins, the ALJ will ask the parties to write out the terms of the agreement and to sign the settlement. If it is not possible to do this on the hearing date, the ALJ will set a date by which it must be prepared and signed.
The ALJ may also ask that the parties meet in the hearing room and place the settlement terms "on the record." This means that the parties will explain the agreement and state that they understand and voluntarily agree to the terms. Once the terms are in writing and signed by the parties, the ALJ will issue a decision. This decision and the settlement are then sent to the agency. If the agency already agreed to the settlement, the case is over. If not, the agency head has forty-five days to review the settlement as he or she would review an initial decision in any other case.
If the party who requested the hearing no longer wishes to proceed with the hearing process, he or she must write to either the ALJ or the Clerk of the OAL. Upon receipt of the withdrawal, the case will be closed and the file returned to the agency. If a hearing request is withdrawn, the agency may proceed with any proposed action.
A party, who has not appeared at the time and place of the hearing, must call the ALJ immediately to explain why. If the ALJ is not contacted and given an explanation for the failure to appear, the case will be sent back to the agency. The agency may then proceed with any proposed action.
If an emergency arises on the hearing date and a party will be late for the hearing, a call should be made to the ALJ or to the phone number on the notice to explain the problem.
If the hearing was tape recorded, a party must write to the Clerk of the OAL to request a transcript. A deposit of $300.00 per hearing day must accompany the request. The requesting party must also notify all parties that the transcript was requested. When the transcript is ready, the requesting party will be billed for the actual cost of preparation and reimbursed for any overpayment.
If the hearing was recorded by a court reporter, the request for a transcript is made directly to the reporting firm. The requesting party must notify the OAL Clerk and the other parties of the request and tell the firm to provide a copy of the transcript to the OAL Clerk. The firm will require a deposit and will bill the requesting party for the cost of preparing the transcript.
Any party may get a copy of the tape of any hearing that was tape recorded by OAL by sending blank cassette tapes to the OAL Clerk. The hearing tapes will be copied onto the blank cassettes at no charge.
A party who objects to any of the information contained in the initial decision may file exceptions with the agency head. Usually exceptions must be filed within thirteen days from the date the initial decision was mailed to the parties, but you should check the end of the initial decision because in some case they must be filed sooner. The exceptions may be in a letter and should explain the particular portions of the initial decision with which you disagree and the specific reasons for the disagreement. Information that was not presented during the hearing cannot be included in the exceptions. A copy of the exceptions should also be sent to the other parties and the ALJ. If the thirteen-day deadline cannot be met because you need to order a transcript or get hearing tapes, write to the agency head and ask for an extension. (See N.J.A.C. 1:1-18.8(d) and (e).
A party may reply to exceptions received from another party by writing to the agency head and sending a copy to the ALJ and all of the other parties.
The agency head can adopt, modify or reject the initial decision within forty-five days of receiving it. If the agency head does not take any action within the forty-five-day period, the initial decision automatically becomes the final decision. A final decision that rejects or modifies the initial decision must specify in detail the reason for rejection or modification and the effect of the change. The final decision must also specify the evidence that justifies the rejection or modification.
In special education matters, the judge's decision is the final administrative decision.
The time for issuing the initial and final decisions can be extended for forty-five days if the Director of the OAL and the head of the transmitting agency both sign an order agreeing to the extension. In that case, the parties will receive a copy of the order. The head of the agency that will issue the decision can grant an extension of the time for filing exceptions, again, there must be good cause for the extension.
Any party may appeal a final decision to the Appellate Division of the Superior Court. The Notice of Appeal must be filed within 45 days of the date of the final decision. The Rules Governing the Courts of the State of New Jersey provide the rules and procedures for filing the appeal. Information regarding filing an appeal may be obtained from: Appeals Information, Superior Court of New Jersey, Richard J. Hughes Justice Complex, PO Box 006, Trenton, New Jersey 08625.
The ALJ's decision in a special education case is final, thus a party may appeal the decision of the ALJ either to the Superior Court of New Jersey, pursuant to the Rules Governing the Courts of the State of New Jersey, or to the District Court for the District of New Jersey pursuant to 20 U.S.C.A. 1415(e)(2).
