State v. Ross, 441 N.J. Super. 120 (App. Div. 2015). This characteristically concise opinion by Judge Fisher involved an order by the Law Division in this criminal case that granted a motion by the Public Defender to compel the County of Middlesex to “provide the means by which incarcerated defendants could accept, access and examine electronic discovery.” The County filed a notice of appeal and then, concerned that the Law Division’s order might not have been final, a motion for leave to appeal. The Law Division then took other action on the motion. Ultimately, the County complied with the Law Division’s order.
Judge Fisher and the panel dismissed the County’s appeal as moot. Since “the County chose to comply with the judge’s orders …. [, t]here is now no ruling we can make or remedy we can impose that would have any impact on the trial court proceedings.”
Despite that, the opinion notes some principles that are often overlooked even though they are settled. First, as Judge Fisher observed, under Rule 2:9-1(a), the filing of the notice of appeal divested the Law Division of jurisdiction, except as necessary to enforce its own order. The Law Division had no ability to take other action once the County had filed its notice of appeal, even if that notice of appeal was “filed precipitously.”
Second, Judge Fisher noted that the County was not a party to this criminal case, and had never been “summon[ed]” to appear, as required by Rule 4:4-4 and constitutional due process principles. A court cannot issue orders against someone who is not properly party to the case, and over whom the court lacks jurisdiction. “The judge should have dismissed the motion and relegated the Public Defender to filing a separate civil complaint naming the appropriate entities or individuals as defendants.”
Third, a specific issue embedded within the appeal, regarding who would bear the costs of the relief that the County provided, had not been decided in the Law Division. Thus, it was not before the Appellate Division and remained an open question. That is because of the venerable rule that “‘appeals are taken from judgments and not from opinions,’ and, therefore, a reviewing court will not consider an appellant’s ‘dissatisfaction’ with a lower court’s opinion.”