Denial of Summary Judgment on Qualified Immunity is Not Immediately Appealable

Harris v. City of Newark, ___ N.J. ___ (2022). [Disclosure: My firm, Lite DePalma Greenberg & Afanador, LLC, represents the City of Newark in certain cases, including cases in which the defense of qualified immunity is or might be raised, but the firm had no involvement in the case that is the subject of this post]. This opinion by Justice Patterson, for a unanimous Supreme Court, addressed the issue of whether an order denying a motion of a public entity or public employee for summary judgment granting qualified immunity in a civil rights act (whether under the federal or New Jersey Civil Rights Act) is immediately appealable or is, instead, interlocutory. The Court held that the matter is interlocutory and requires leave to appeal.

Defendants here had sought summary judgment in their favor based on qualified immunity. The Law Division denied that motion. Defendants filed a notice of appeal as of right and also filed a motion for leave to appeal. The Appellate Division dismissed the notice of appeal on the ground that the appeal was interlocutory. That court also denied leave to appeal. The Supreme Court granted defendants’ petition for certification.

Justice Patterson noted that the Court has a “general policy against piecemeal determinations,” and that Rule 2:2-3(a) identifies a number of appeals that, although not involving a judgment that is final as to all parties on all issues, can be appealed immediately. She also discussed several cases where the Court went beyond the Rules’ list of such appeals and allowed immediate appeals under other circumstances. “In those decisions, [the Court] considered such factors as the impact of an immediate right to appeal on the litigation between the parties, the burdens imposed on the parties, the language and legislative purpose of the governing statute, the prospect of substantial prejudice to parties absent an appeal as of right, and uniformity in appellate procedure as applied to similar categories of trial court orders.”

Here, Justice Patterson said, those factors weighed against immediate appeal. “First, a motion for leave to appeal pursuant to Rules 2:2-4 and 2:5-6 provides a meaningful opportunity for interlocutory appellate review. … A meritless NJCRA claim can be dismissed on motion for leave to appeal, thus protecting the public entity’s interest in avoiding trial costs and potential liability.” The purposes of the New Jersey Civil Rights Act– “to provide a remedy for deprivation of or interference with civil rights — would not be advanced by appeal as of right. [Citations]. To the contrary, a ruling deeming orders denying qualified immunity final and appealable as of right would delay NJCRA cases, thus undermining the statute’s goal.” And an appeal as of right on qualified immunity would not resolve the entire case, as there were also tort claims brought. Thus, Justice Patterson said, there was “no reason to depart in this case from our general policy in favor of restrained appellate review of issues relating to matters still before the trial court to avoid piecemeal litigation.”

Defendants also argued that New Jersey should adopt the federal “collateral order doctrine,” which allows immediate appeals “within that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Appeals from denials of qualified immunity in federal civil rights act cases are considered collateral orders and are immediately appealable in federal cases. But states have the choice whether to adopt the doctrine for federal civil rights act claims brought in state court, and Justice Patterson noted that states are split as to whether immediate appeals from denials of qualified immunity are permitted.

The Court declined to adopt the collateral order doctrine. “In our view, applying the collateral order doctrine to NJCRA claims would engender substantial delay in the resolution of civil rights litigation, encourage piecemeal litigation, and undermine judicial economy. We view our current appellate procedure to effectively balance the interests of the parties and promote judicial economy in NJCRA actions. We decline to adopt the collateral order doctrine for such claims.”

Justice Patterson also rebuffed defendants’ argument that Rule 2:2-3(a), as applied to this case, was preempted by federal law. That Rule is a “neutral procedural rule” and, as such, was not preempted.