The NJ Supreme Court has held the
ability to call an adverse witness to testify applies to administrative cases
Laba v. Newark Board of
Education, 23 N.J. 364 (1957)
129 A.2d 273 (N.J. 1957) Supreme Court of New Jersey:
“N.J.S. 2A:81-6 provides that "in
all civil actions in any court of record" a party shall give evidence when
called by the adverse party "but no party thereto shall be compelled to be
sworn or give evidence in any action brought to recover a penalty or to enforce
a forfeiture." Its express terms would seem to indicate its inapplicability
in the instant matter. However, N.J.S. 2A:81-5 does provide more
comprehensively that "no witness shall be compelled to answer any question
if the answer will expose him to a criminal prosecution or penalty or to a
forfeiture of his estate"; we shall assume that this provision applies
fully to proceedings before administrative tribunals as well as judicial
tribunals. See State
v. Rixon, 180 Minn.573, 231 N.W. 217, 68 A.L.R. *391 1501 (1930); Hirshfield v. Hanley, 228 N.Y. 346, 127 N.E. 252 (1920). Cf. Commonwealth v. Prince, 313 Mass. 223, 46 N.E.2d 755, 152 A.L.R. 571 (1943), affirmed 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944). Nevertheless, we are
satisfied that a public school teacher may not, during an inquiry as to his
continued fitness to teach, decline to answer pertinent questions in reliance
on N.J.S. 2A:81-5 without incurring the danger of a
resulting dismissal under R.S. 18:13-17.
We incline to reject the teachers' contention
that a public school teacher's tenure is "a property right — a part of his estate"
and that dismissal of a teacher because of misconduct is a forfeiture of his
estate within the meaning of N.J.S. 2A:81-5. In England, public
offices were incorporeal hereditaments and the subjects of vested or private
interests, but in the United States, and particularly in our State, they were
never viewed as being held by grant or contract and individuals have never had
any vested or property rights in them. See Stuhr v. Curran, 44 N.J.L. 181 (E. & A. 1882). Cf. De Marco v. Board of Chosen Freeholders of Bergen
County, 21 N.J. 136, 141 (1956). In Phelps v. Board of Education, 115 N.J.L. 310, 314 (Sup. Ct. 1935), affirmed 116 N.J.L. 412 (E. & A. 1936), affirmed 300 U.S. 319, 57 S.Ct. 483, 81 L.Ed. 674 (1937), Justice Parker pointed out that
the status of tenure teachers was "in essence dependent on a statute, like
that of the incumbent of a statutory office, which the legislature at will may
abolish, or whose emoluments it may change." Cf. Thorp v. Board of Trustees of Schools
for Industrial Ed., supra, 6 N.J., at page 506. See Annotation, "Teachers' tenure statutes," 127 A.L.R. 1298, 1326 (1940); Emerson and Haber, Political and Civil Rights
in the United States 878 (1952).
In Pfitzinger v. United States Civil Service Commission, 96 F. Supp. 1, 3 (D.C.D.N.J. 1951), affirmed 192 F.2d934 (3 Cir. 1951), the court suggested that a federal employee who
is called before the Civil Service Commission to account for alleged improper
political activity may not assert that he is privileged to refuse to answer
because of the danger of the loss of his employment; it *392 described removal from
his position as a "remedial sanction" and noted that "the
imposition of such a remedial sanction, although it may be of serious
consequence to the person affected, may not be regarded as a forfeiture of a
right" but only as "the withholding of a privilege." See also Application of Delehanty, 202 Misc. 40, 115 N.Y.S.2d 610 (Sup. Ct.1952), affirmed 280 App. Div. 542, 115 N.Y.S.2d 614 (App. Div. 1952), affirmed 304 N.Y. 725, 727, 108 N.E.2d 46 (1952).
