“The Song Remains the Same”: There’s No Automatic Right to Appeal an Interlocutory Order, and Improper Appeals Will be Dismissed

House of Fire Christian Church v. Clifton Bd. of Adj., 426 N.J. Super. 157 (App. Div. 2012).  The Appellate Division has repeatedly admonished parties, attorneys, and trial level judges that it is improper to certify as final, under Rule 4:42-2, an order that is purely interlocutory, as a means of obtaining immediate appellate review.  The court has also made clear that improperly certified appeals will be dismissed.  Yet, despite what Judge Harris, the author of this opinion, labeled (in his usual colorful style) the Appellate Division’s “best pedantic efforts,” the court continues to have to issue opinions reiterating what should be a relatively simple point.

Here, both parties conceded at oral argument that the appeal was interlocutory.  That was because although issues under the Municipal Land Use Law (“MLUL”), N.J.S.A. 40:55D-1 et seq., had been resolved, other potentially thorny questions raised by plaintiff’s claim under the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. §2000cc to 2000cc-5, had been severed and remained unadjudicated.

The parties, however, contended that the Appellate Division should not dismiss the appeal but should hear it despite its unauthorized nature because the Law Division had certified it as final, and because the parties had invested enormous time and energy in the case, which had begun in 2001.  The panel was not persuaded.  Judge Harris observed that Rule 4:42-2, under which the Law Division had certified the case as final, is “plainly written” and permits certification as final only of an order that “would be subject to process to enforce a judgment pursuant to Rule 4:59 if it were final.”  The order in this case did not even “remotely” qualify under that test.

“Notwithstanding First Amendment (freedom of religion) interests that may be involved, the present clash is essentially a local land use dispute that affects only a limited class of interested parties.”  Deferring an appeal of the MLUL issues until the RLUIPA issues are decided did not “impair either the public interest or the ‘interest of justice,'” the standard for interlocutory appeals under Rule 2:2-4.  As Judge Harris aptly summed it up, “[w]e have no grounds to promote and accelerate the resolution of this appeal over the thousands of others waiting their turn for disposition.”

In one of the seminal decisions on this topic, Grow Co., Inc. v. Chokshi, 403 N.J. Super. 443 (App. Div. 2008), Judge Fisher did his best to dissuade parties from seeking, and trial level judges from issuing, improper Rule 4:42 certifications.  Now, Judge Harris has taken his turn in a published opinion.  In short, the message to those who might consider seeking Rule 4:42 certification when it is not appropriate in order to get to the Appellate Division prematurely is (to paraphrase the Nike slogan) “Just don’t do it.”