Insubstantial Constitutional Issues Don’t Afford an Appeal to the Supreme Court as of Right

On this date in 1965, the Supreme Court decided Tidewater Oil Co. v. Mayor & Council of Borough of Carteret, 44 N.J. 338 (1965), a municipal land use case.  That is still the leading case on the question of the extent to which a question of constitutional law allows a party to pursue an appeal to the Supreme Court as of right, as opposed to on a petition for certification, whose grant is discretionary with the Supreme Court.  Subsequent cases have addressed that issue as well, but Tidewater is the foundation for those decisions.

As the Court’s per curiam opinion noted, the New Jersey Constitution stated, in article VI, section 5, paragraph 1, that appeals may be taken to the Supreme Court “involving a question arising under the Constitution of the United States or this State.”  A court rule then in effect supported that as well.  Plaintiffs had filed suit to challenge the validity of provisions of Carteret’s zoning ordinance that forbade plaintiffs from constructing and operating in a “Heavy Industrial B” zone a “tank farm” to store petroleum products.  The Law Division agreed with plaintiffs, but the Appellate Division reversed. 

Plaintiffs then filed an appeal as of right in the Supreme Court.  Their argument was that the ordinance provisions in question were “unconstitutionally capricious and discriminatory … [under] the familiar due process and equal protection concepts of the Fourteenth Amendment,” as the Court put it.  Plaintiffs did not, however, petition for certification.  Defendants moved to dismiss the appeal on the ground that it did not fall within the constitutional or court rule parameters for an appeal as of right.

The Court then devoted most of its opinion to that question.  Citing cases dating back to the early 1950’s, just a few years after the 1947 Constitution became effective, the Court stated that, to support an appeal to the Supreme Court as of right, “the constitutional question should be a real and not merely a superficial one.  Consequently this court determined in the early days of the new system that a constitutional question, in the sense intended by the appellate jurisdiction section of the 1947 instrument, must be ‘substantial,’ and not ‘merely colorable.’”

“It is clearly not enough if the asserted question is only remotely or speciously connected to the constitution by the loose or contrived use of broad constitutional terminology.  Shibboleth mouthing of constitutional phrases like ‘due process of law’ and ‘equal protection of the laws’ does not [i]pso facto assure absolute appealability.”  Otherwise, the Court said, every case could be twisted into one asserting an issue of constitutional law, thus burdening the Court with a flood of appeals as of right.

Though plaintiffs had couched their appeal in terms of the Fourteenth Amendment’s due process and equal protection guarantees, “the supporting argument boils down, as in most cases of this kind, to a claim that, in this particular factual setting, the ordinance treatment is unreasonable because not within the purposes and essential considerations or the requirement of uniform regulations specified by the zoning enabling act as necessary to undergird valid local legislation.  While these statutory prerequisites have loose constitutional connotations, the fundamental question here resolves itself into a matter of application of statutory standards to a particular factual situation under long established principles.”  It would be a “rare case” where such a fact-intensive issue would support an appeal as of right, the Court said.

The Court then went on to offer practice advice that remains valid today: “We think, therefore, that in any case where the right to appeal from the Appellate Division is not clear beyond doubt, the proposed appellant should petition for certification, outlining fully his claim to an appeal as of right, as well as any other appropriate reasons indicating why this court should allow further review even if it believes that the case does not present a sufficient constitutional question.”  This approach of both appealing as of right and petitioning for certification protects the party seeking review if the Court deems the constitutional question insufficiently substantial to support an appeal as of right.

Because the Court considered that it had “previously not been fully clear” that an issue such as that presented by plaintiffs in Tidewater would not support an appeal as of right, the Court agreed to consider the appeal even though “there is no absolute right of appeal here.”  The Court then proceeded to affirm the Appellate Division’s decision upholding the ordinance.

Today, the New Jersey Constitution still reads as it did in 1965.  Rule 2:2-1(a)(1) states that an appeal as of right is available “in cases determined by the Appellate Division involving a substantial question arising under the  Constitution of the United States or this State.”  That language incorporates the ‘substantiality” requirement that Tidewater made clear had already existed.  The Court’s “belt and suspenders” practice pointer in Tidewater remains the most prudent course for parties seeking Supreme Court review in cases involving constitutional issues today.