On June 20, Assemblymen Gary Chiusano (R-24th Dist.) and John Wisniewski (D-19th Dist.) introduced Assembly Bill 4135. That legislation would make appealable to the Appellate Division as of right, instead of on an interlocutory basis, any court decision that grants or denies class certification or decertification. The bill would also treat appeals to the Supreme Court from Appellate Division rulings on class certification or decertification like an appeal from a final judgment of the Appellate Division, instead of as an appeal of an interlocutory ruling as is currently the case under Rule 2:2-5(a). An appeal would stay all other proceedings in the Superior Court pending resolution of the appeal.
This legislation appears to be unconstitutional under Winberry v. Salisbury, 5 N.J. 240 (1950). Winberry, a landmark decision written by Chief Justice Vanderbilt, held that the Legislature had no power to enact laws dealing with procedures for appeals to the Appellate Division. Instead, Article VI, section 2, paragraph 3 of the New Jersey Constitution gives sole power to the Supreme Court to regulate practice and procedure in the courts. Winberry applies even more plainly to the portion of A-4135 that purports to dictate procedures for review by the Supreme Court itself. Thus, regardless of the merits, the bill exceeds the Legislature’s power and should not be enacted.
But A-4135 is unwise policy as well. Class certification decisions are discretionary, and appellate review is based on an abuse of discretion standard. Currently, the Appellate Division can grant leave to appeal a class certification decision under the normal provisions of Rule 2:5-6. The “interest of justice” standard of Rule 2:2-4 applies. Moreover, under Rule 2:5-6(c), the trial judge can “comment on whether the motion for leave to appeal should be granted on the ground, among others, that a controlling question of law not theretofore addressed by an appellate court of this state is involved and that the grant of leave to appeal may materially advance the ultimate resolution of the matter.”
These provisions have enabled the Appellate Division to control its docket, in line with the policy of the Supreme Court and the Court Rules to streamline cases by limiting interlocutory appeals, while granting leave to appeal both grants and denials of class certification in proper cases. A grant of leave to appeal divests the trial court of jurisdiction and effectively stays the trial court’s ruling. Unmeritorious motions for leave to appeal are denied within a few weeks, allowing cases to proceed promptly.
A-4135 would replace the current system, which has largely worked well, with a regime that makes every class certification decision appealable as of right, and imposes a stay pending that appeal in every case, even when it is highly unlikely that an appellant could climb the steep hill of showing an abuse of discretion. That is poor public policy. Where an appeal is warranted, the current Court Rules permit it. There is no basis for permitting an appeal in every instance and halting plainly meritorious cases for a year or more while an appeal of a certification decision that was within the trial judge’s discretion proceeds.
As I discussed here, New Jersey did not need even to incorporate a parallel to Federal Rule of Civil Procedure 23(f), which permits appeals of class certification decisions only in certain cases and on an interlocutory basis only. The Supreme Court wisely has not adopted Rule 23(f). A-4135 would go even further than Rule 23(f) by allowing appeals as of right of every class certification decision. That would be a serious mistake, and an unconstitutional one.