Hamid Harris v. City of Newark (085028) (Essex County & Statewide)

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office
of the Clerk for the convenience of the reader. It has been neither reviewed nor
approved by the Court and may not summarize all portions of the opinion.
Hamid Harris v. City of Newark (A-59-20) (085028)
Argued November 30, 2021 -- Decided March 30, 2022
JUSTICE PATTERSON, writing for a unanimous Court.
In this appeal, the Court reviews the Appellate Division’s order dismissing the
notice of appeal filed by defendants the City of Newark, Detective Donald Stabile,
and Police Officer Angel Romero following the trial court’s denial of their motion
for summary judgment, in which defendants asserted qualified immunity as a
defense to plaintiff Hamid Harris’s claims brought under the New Jersey Civil
Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2. Defendants contend that the trial
court’s order denying summary judgment was a legal determination and should
therefore be deemed appealable as of right, in keeping with both New Jersey
appellate practice and federal law.
Plaintiff alleges that Stabile, a Newark Police Department detective, falsely
accused him of four armed robberies that were committed in Newark in January
2015 and unlawfully arrested him in connection with those robberies based on an
improperly issued arrest warrant. After the charges against plaintiff were dismissed,
he filed this action. He asserted, as relevant here, NJCRA claims against Stabile for
false arrest, false imprisonment, and malicious prosecution and an NJCRA claim
against Stabile and Romero for civil rights conspiracy. Defendants asserted the
defense of qualified immunity to those claims and moved for summary judgment.
The trial court rejected defendants’ claim. It reasoned that because Stabile
did not have probable cause to arrest plaintiff, and because Stabile’s belief that
plaintiff committed the robberies was objectively unreasonable, defendants were not
entitled to qualified immunity.
Defendants filed a notice of appeal, asserting that Rule 2:2-3(a)(3) authorized
them to appeal as of right the trial court’s decision denying qualified immunity.
They also moved for leave to file an interlocutory appeal pursuant to Rule 2:5-6.
The Appellate Division ruled that “[t]he appeal is interlocutory as it is not from a
final order” and dismissed defendants’ notice of appeal. The appellate court also
denied defendants’ motion for leave to appeal. The Court granted certification. 246
N.J. 231 (2021).
1
HELD: The trial court’s order in this case was a decision premised on factual
findings as well as legal conclusions, not an exclusively legal determination. A trial
court’s order rejecting as a matter of law a claim of qualified immunity should not
be designated as a final order appealable as of right under Rule 2:2-3(a), and federal
law does not require the contrary result. In an NJCRA action, a defendant seeking to
challenge a trial court’s order denying qualified immunity prior to final judgment
must proceed by motion for leave to file an interlocutory appeal in accordance with
Rules 2:2-4 and 2:5-6.
1. The NJCRA provides a remedy for deprivation of or interference with federal
civil rights and substantive rights guaranteed by New Jersey’s Constitution and laws.
See N.J.S.A. 10:6-2(c). Qualified immunity operates to shield government officials
performing discretionary functions generally from liability for civil damages insofar
as their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known. Generally, application of the
defense of qualified immunity is a legal question for the court rather than the jury
that should be raised before trial. Case law, however, recognizes an exception to the
rule that qualified immunity issues are legal issues to be decided by the court when
the case involves disputed issues of fact. (pp. 10-12)
2. Here, the trial court’s denial of summary judgment was premised on factual
disputes as well as the court’s legal conclusions. It was not an exclusively legal
determination. The court identified factual disputes regarding plaintiff’s false arrest
and false imprisonment civil rights claims and witnesses’ identifications of plaintiff,
and the court stated that those factual disputes precluded summary judgment on the
issue of qualified immunity. (pp. 13-14)
3. The Court nevertheless considers the issue raised in this appeal: whether a trial
court’s purely legal determination denying qualified immunity should be appealable
as of right under Rule 2:2-3(a). The court rules governing New Jersey appellate
practice generally draw a sharp distinction between final judgments appealable as of
right and interlocutory orders that may be challenged by motion for leave to appeal
governed by the “interest of justice” standard. Rule 2:2-3(a)(3), however, authorizes
an appeal as of right to the Appellate Division in such cases as are provided by law,
and lists a group of orders that, although technically interlocutory, are appealable as
final judgments. The Court reviews three decisions in which it diverged from the
general policy against piecemeal determinations to deem specific categories of
interlocutory orders final for purposes of appeal. See Moon v. Warren Haven
Nursing Home, 182 N.J. 507 (2005); Wein v. Morris, 194 N.J. 364, (2008); GMAC
v. Pittella, 205 N.J. 572 (2011). 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
2
appeal as of right, and uniformity in appellate procedure as applied to similar
categories of trial court orders. (pp. 14-19)
4. Several of those factors inform the Court’s decision in this 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 and protects the public entity’s
interest in avoiding trial costs and potential liability. Second, in contrast to the
legislative goals of the tort claims and arbitration statutes reviewed in Moon, Wein,
and GMAC, the Legislature’s purpose in enacting the NJCRA would not be
advanced by appeal as of right. Third, the NJCRA does not prescribe appellate
review of some orders and deny appellate review of other orders, and so uniformity
in the application of laws is not a factor here. Fourth, an appeal as of right of the
trial court’s qualified immunity decision would not resolve this litigation, given
plaintiff’s tort claims. Here, the Court perceives no reason to depart from the
general policy in favor of restrained appellate review of issues relating to matters
still before the trial court to avoid piecemeal litigation. The Court declines to add
legal determinations denying the defense of qualified immunity to the narrow class
of interlocutory orders subject to direct appeal under Rule 2:2-3(a). (pp. 19-21)
5. The Court next considers defendants’ contention that Rule 2:2-3(a) should be
conformed to federal law by adopting the collateral order doctrine that governs
appellate practice in federal civil rights actions. Under United States Supreme Court
case law, a state may adopt or reject the collateral order doctrine even in actions
brought in state court under federal law, and a state is clearly free to adopt or reject
that doctrine in state court actions premised on state civil rights statutes such as the
NJCRA. The Court views New Jersey’s current appellate procedure to effectively
balance the interests of the parties and promote judicial economy in NJCRA actions
and declines to adopt the collateral order doctrine for such claims. (pp. 21-27)
6. The Court also disagrees with defendants’ contention that Rule 2:2-3(a), as
applied to this appeal, is preempted by federal law. Rule 2:2-3(a) is clearly a neutral
state procedural rule, and it does not determine the outcome of this appeal, let alone
raise the specter of inconsistent dispositions of civil rights claims in state and federal
court. See Johnson v. Fankell, 520 U.S. 911, 918-23 (1997). The Appellate
Division has the authority to grant interlocutory review in the interest of justice,
Rule 2:2-4, and the appellate court can and should review qualified immunity
decisions on an expedited basis where parties seeking to appeal demonstrate a
“meritorious basis” for such review, GMAC, 205 N.J. at 585. (pp. 27-28)
AFFIRMED and REMANDED to the trial court for further proceedings.
CHIEF JUSTICE RABNER and JUSTICES ALBIN, SOLOMON, and
PIERRE-LOUIS join in JUSTICE PATTERSON’s opinion.
3
SUPREME COURT OF NEW JERSEY
A-59 September Term 2020
085028
Hamid Harris,
Plaintiff-Respondent,
v.
City of Newark, Newark Police
Department, Detective Donald
Stabile, Police Officer Angel
Romero, John Does 1-10, ABC
Public Entities 1-10, et al.,
Defendant-Appellants.
On certification to the Superior Court,
Appellate Division.
Argued Decided
November 30, 2021 March 30, 2022
Emilia Perez, Assistant Corporation Counsel, argued the
cause for appellants (Kenyatta K. Stewart, Corporation
Counsel, City of Newark-Department of Law, attorneys;
Wilson D. Antoine, Assistant Corporation Counsel, of
counsel and on the briefs).
Brooke M. Barnett argued the cause for respondent
(BMB Law Firm, attorneys; Brooke M. Barnett, on the
briefs).
Angela Cai, Assistant Attorney General, argued the cause
for amicus curiae Attorney General of New Jersey
(Andrew J. Bruck, Acting Attorney General, attorney;
1
Angela Cai and Melissa H. Raksa, Assistant Attorneys
General, of counsel and on the brief, and Matthew J.
Lynch and Eric Intriago, Deputy Attorneys General, on
the brief).
Robert F. Renaud argued the cause for amici curiae New
Jersey State League of Municipalities and the New Jersey
Institute of Local Government Attorneys (Renaud
DeAppolonio, attorneys; Robert F. Renaud, on the brief).
Karen Thompson argued the cause for amicus curiae
American Civil Liberties Union of New Jersey (American
Civil Liberties Union of New Jersey Foundation,
attorneys; Karen Thompson, Alexander Shalom, and
Jeanne LoCicero, on the brief).
J. Remy Green submitted a brief on behalf of amicus
curiae National Police Accountability Project (Cohen &
Green, and Pawar Law, attorneys; J. Remy Green, on the
brief, and Lauren Bonds, of the Kansas and Texas bars,
admitted pro hac vice, of counsel and on the brief).
JUSTICE PATTERSON delivered the opinion of the Court.
The doctrine of qualified immunity “shields law enforcement officers
from personal liability for civil rights violations when the officers are acting
under color of law in the performance of official duties,” unless the officers’
“performance is not objectively reasonable.” Morillo v. Torres, 222 N.J. 104,
107-08 (2015). Qualified immunity can be asserted as a defense against
actions brought under the New Jersey Civil Rights Act (NJCRA), N.J.S.A.
2
10:6-1 to -2, and federal causes of action for a violation of civil rights under
42 U.S.C. § 1983. See Morillo, 222 N.J. at 107-08.
In this appeal, we review the Appellate Division’s order dismissing the
notice of appeal filed by defendants the City of Newark, Detective Donald
Stabile, and Police Officer Angel Romero following the trial court’s denial of
their motion for summary judgment, in which defendants asserted qualified
immunity as a defense to plaintiff Hamid Harris’s civil rights claims.
Defendants contend that the trial court’s order denying summary judgment was
a legal determination and should therefore be deemed appealable as of right
under Rule 2:2-3(a)(3), in keeping with both New Jersey appellate practice and
federal law.
We view the trial court’s order in this case to be a decision premised on
factual findings as well as legal conclusions, not an exclusively legal
determination. We conclude that a trial court’s order rejecting as a matter of
law a claim of qualified immunity should not be designated as a final order
appealable as of right under Rule 2:2-3(a), and that federal law does not
require the contrary result. In an NJCRA action, a defendant seeking to
challenge a trial court’s order denying qualified immunity prior to final
judgment must proceed by motion for leave to file an interlocutory appeal in
accordance with Rules 2:2-4 and 2:5-6.
3
Accordingly, we affirm the Appellate Division’s order dismissing
defendants’ notice of appeal and remand this matter to the trial court for
further proceedings.
I.
A.
Plaintiff alleges that Stabile, a Newark Police Department detective,
falsely accused him of four armed robberies that were committed in Newark in
January 2015 and unlawfully arrested him in connection with those robberies
based on an improperly issued arrest warrant.
After the charges against plaintiff were dismissed, he filed this action
against defendants. In his amended complaint, plaintiff asserted NJCRA
claims against Stabile for false arrest, false imprisonment, and malicious
prosecution; an NJCRA claim against Stabile and Romero for civil rights
conspiracy; a claim against all defendants for unlawful search and seizure
based on the Fourth Amendment to the United States Constitution and the
NJCRA; a common-law claim against all defendants for intentional infliction
of emotional distress; and a common-law claim against the City of Newark for
negligent hiring, supervision, training, and retention of police officers based in
part on a theory of respondeat superior. Defendants asserted the defense of
qualified immunity to plaintiff’s claims under the NJCRA.
4
Defendants moved for summary judgment dismissing plaintiff’s claims.
After the parties completed discovery, the trial court granted in part and denied
in part defendants’ motion. The court dismissed plaintiff’s claims under the
Fourth Amendment and the NJCRA for unlawful search and seizure. It also
dismissed plaintiff’s negligent hiring, supervision, training, and retention
claims against the City of Newark to the extent that those claims were based
on a theory of respondeat superior.
The trial court rejected defendants’ claim that they were entitled to
summary judgment based on qualified immunity as to plaintiff’s NJCRA
claims for false arrest, false imprisonment, malicious prosecution, and
conspiracy. It reasoned that because Stabile did not have probable cause to
arrest plaintiff, and because Stabile’s belief that plaintiff committed the
robberies was objectively unreasonable, defendants were not entitled to
qualified immunity. The trial court also denied the City of Newark’s motion
for summary judgment as to plaintiff’s negligent hiring, supervision, training,
and retention claims, to the extent that those claims were not based on a theory
of respondeat superior.
Pursuant to Rule 4:49-3, defendants moved for reconsideration of the
trial court’s decision denying in part their summary judgment claims. In a
written opinion, the trial court denied the motion for reconsideration.
5
B.
Defendants filed a notice of appeal, asserting that Rule 2:2-3(a)(3)
authorized them to appeal as of right the trial court’s decision denying
qualified immunity. They also moved for leave to file an interlocutory appeal
pursuant to Rule 2:5-6.
By Order dated September 25, 2020, the Appellate Division ruled that
“[t]he appeal is interlocutory as it is not from a final order” and dismissed
defendants’ notice of appeal. The appellate court also denied defendants’
motion for leave to appeal.
C.
We granted defendants’ petition for certification. 246 N.J. 231 (2021). 1
We also granted amicus curiae status to the Attorney General; the New Jersey
State League of Municipalities and the New Jersey Institute of Local
Government Attorneys, jointly represented; the American Civil Liberties
Union of New Jersey; and the National Police Accountability Project.
1
In addition to filing a petition for certification, defendants moved for leave
to appeal under Rule 2:5-6.
6
II.
A.
Defendants urge us to hold that the trial court’s decision denying
qualified immunity as a matter of law was a legal determination that should be
viewed as final for purposes of Rule 2:2-3(a)(3). They argue that it would be
inconsistent with our decision in Moon v. Warren Haven Nursing Home, 182
N.J. 507, 516-18 (2005), to rule that an order denying qualified immunity is
not appealable as of right. Defendants contend that because a federal district
court’s legal determination denying qualified immunity is appealable as final
under 28 U.S.C. § 1291, state court orders denying qualified immunity as a
defense to NJCRA claims should also be appealable as of right pursuant to the
collateral order doctrine. Defendants assert that a ruling denying an appeal as
of right in the setting of this appeal would violate the principle of neutrality
prescribed in Johnson v. Fankell, 520 U.S. 911, 918 (1997), and that such a
ruling would be preempted by federal law.
B.
Plaintiff contends that the trial court’s denial of summary judgment on
the issue of qualified immunity was not a purely legal determination, but was
premised on both legal and factual grounds. He distinguishes this appeal from
our decision in Moon on the ground that factual disputes precluded summary
7
judgment in this case. Plaintiff states that in light of the judicial policy against
piecemeal review of trial court decisions, an appeal as of right is ordinarily
unavailable to a litigant unless the challenged determination is final as to all
issues and all parties, and he urges that we refrain from creating an additional
exception to that principle for orders denying qualified immunity. He asserts
that New Jersey law should continue to treat such decisions as interlocutory
orders that may be challenged prior to final judgment only by motion for leave
to appeal.
C.
Amicus curiae the Attorney General asserts that, absent a factual dispute
that requires a jury determination, we should permit appeals as of right from a
denial of qualified immunity, absolute immunity, sovereign immunity, or
statutory immunity because those immunities shield public employees and
public entities from the burden of defending against civil rights claims as well
as relieving those entities from potential liability. The Attorney General
argues that allowing direct appeals from purely legal determinations denying
qualified immunity would align New Jersey appellate practice with federal law
and the decisions of other states’ highest courts.
8
D.
Amici curiae New Jersey State League of Municipalities and the New
Jersey Institute of Local Government Attorneys urge that we follow federal
law and allow appeals as of right from decisions denying qualified immunity
pursuant to Rule 2:2-3(a)(3). Amici curiae assert in the alternative that we
should hold that motions for leave to appeal such decisions should be granted
as a matter of course under Rule 2:2-4 because immediate appeal of qualified
immunity orders is in the interest of justice and may prevent irreparable harm.
E.
Amicus curiae the American Civil Liberties Union of New Jersey argues
that because the trial court’s summary judgment decision was not an
exclusively legal determination, the federal collateral order doctrine is
irrelevant to this case. Amicus asserts that even if the collateral order doctrine
were to govern New Jersey appellate procedure, that doctrine would not
warrant an appeal as of right in this case.
F.
Amicus curiae National Police Accountability Project asserts that a rule
allowing appeals as of right from decisions denying qualified immunity would
prejudice plaintiffs and contravene the goals of civil rights litigation against
police officers.
9
III.
A.
42 U.S.C. § 1983 prescribes a federal cause of action for the
“deprivation of any rights, privileges, or immunities secured by the
Constitution and laws” by a “person who [acts] under color of any statute,
ordinance, regulation, custom, or usage, of any State.”
When it enacted the NJCRA in 2004, the Legislature sought to
“provid[e] the citizens of New Jersey with a State remedy for deprivation of or
interference with the civil rights of an individual.” Perez v. Zagami, LLC, 218
N.J. 202, 212 (2014) (quoting S. Judiciary Comm. Statement to S. 1158 (May
6, 2004)); see also Gormley v. Wood-El, 218 N.J. 72, 97 (2014) (“Section
1983 applies only to deprivations of federal rights, whereas N.J.S.A. 10:6-1 to
-2 applies not only to federal rights but also to substantive rights guaranteed by
New Jersey’s Constitution and laws.”).
The NJCRA provides that
[a]ny person who has been deprived of any substantive
due process or equal protection rights, privileges or
immunities secured by the Constitution or laws of the
United States, or any substantive rights, privileges or
immunities secured by the Constitution or laws of this
State, or whose exercise or enjoyment of those
substantive rights, privileges or immunities has been
interfered with or attempted to be interfered with, by
threats, intimidation or coercion by a person acting
10
under color of law, may bring a civil action for damages
and for injunctive or other appropriate relief.
[N.J.S.A. 10:6-2(c).]
“[Q]ualified immunity operates to shield ‘government officials
performing discretionary functions generally . . . from liability for civil
damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.’”
Morillo, 222 N.J. at 116 (omission in original) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). The defense “interposes a significant hurdle for
plaintiffs seeking to recover for asserted violations of civil rights at the hands
of law-enforcement officials.” Ibid.A court’s determination whether a law enforcement officer is entitled to
assert the defense of qualified immunity in summary judgment motions is
governed by a two-pronged test: first, the “court must determine whether,
‘[t]aken in the light most favorable to the party asserting the injury,’ the facts
alleged ‘show that the challenged conduct violated a statutory or constitutional
right’”; and second, the court “must determine ‘whether the right was clearly
established.’” Baskin v. Martinez, 243 N.J. 112, 139-40 (2020) (alteration in
original) (quoting Morillo, 222 N.J. at 117); see also Brown v. State, 230 N.J.
84, 98 (2017).
11
“The interpretation given to parallel provisions of [42 U.S.C. § 1983]
may provide guidance in construing our Civil Rights Act.” Tumpson v.
Farina, 218 N.J. 450, 474 (2014). New Jersey’s “qualified immunity doctrine
tracks the federal standard.” Brown, 230 N.J. at 98.
“Generally, ‘application of the defense of qualified immunity is a legal
question for the court rather than the jury’ that should be raised before trial.”
Baskin, 243 N.J. at 139 (quoting Brown, 230 N.J. at 98-99); see also Brown,
230 N.J. at 99 (recognizing that “[q]ualified immunity relieves an eligible
defendant from the burden of trial,” and acknowledging “the importance of
resolving immunity questions at the earliest stage in litigation” (quoting
Hunter v. Bryant, 502 U.S. 224, 228 (1991)). A motion for summary judgment
“is an appropriate vehicle for deciding [the] threshold question of immunity
when raised.” Baskin, 243 N.J. at 139 (quoting Morillo, 222 N.J. at 119).
Our case law, however, recognizes an exception to the rule that qualified
immunity issues are legal issues to be decided by the court “when the case
involves disputed issues of fact.” Brown, 230 N.J. at 99. In that setting, “the
case may be submitted to the jury to determine ‘the who-what-when-where-
why type of historical fact issues,’ after which the trial judge may incorporate
those findings in determining whether qualified immunity applies.” Ibid.
(quoting Schneider v. Simonini, 163 N.J. 336, 359 (2000)).
12
B.
We consider the question whether the trial court’s order denying
defendants’ summary judgment motion on the issue of qualified immunity
should be appealable as of right pursuant to Rule 2:2-3(a)(3).
1.
We concur with plaintiff that the trial court’s denial of summary
judgment was premised on factual disputes as well as the court’s legal
conclusions, and that it was not an exclusively legal determination.
In the portion of the trial court’s oral opinion on summary judgment that
addressed qualified immunity, the court ruled that the warrant issued for
plaintiff’s arrest was not supported by probable cause and that a reasonable
officer in Stabile’s position would not have believed, based on the available
evidence, that plaintiff had committed the January 2015 robberies. In that
regard, the trial court appeared to decide the question of qualified immunity as
a matter of law. However, the court also cited factual disputes regarding
witnesses’ identifications of plaintiff as a perpetrator of the robberies and the
question whether police officers discovered a firearm in plaintiff’s bedroom
before or after plaintiff’s arrest.
In its written opinion denying defendants’ motion for reconsideration,
the trial court confirmed that its determination was based in part on genuine
13
issues of material fact precluding summary judgment under Rule 4:46-2. The
court identified factual disputes regarding plaintiff’s false arrest and false
imprisonment civil rights claims and witnesses’ identifications of plaintiff, and
the court stated that those factual disputes precluded summary judgment on the
issue of qualified immunity. In short, the trial court’s ruling was not an
exclusively legal determination.
2.
Notwithstanding that conclusion, we consider the issue raised in this
appeal: whether a trial court’s purely legal determination denying qualified
immunity should be appealable as of right.
We first address defendants’ argument that Rule 2:2-3(a) implicitly
recognizes a right to appeal such a determination.
The court rules governing New Jersey appellate practice generally draw
a sharp distinction between final judgments appealable as of right to the
Appellate Division and interlocutory orders that may be challenged by motion
for leave to appeal governed by the “interest of justice” standard. See R. 2:2-
3(a); R. 2:2-4; R. 2:5-6. Rule 2:2-3(a)(3), however, authorizes an appeal as of
right to the Appellate Division “in such cases as are provided by law,” and
“lists a group of orders that, although technically interlocutory, are appealable
as final judgments for reasons of public policy and expedition of judicial
14
administration.” Pressler & Verniero, Current N.J. Court Rules, cmt. 1.1 on R.
2:2-3(a)(3) (2021). Those orders
include those referred to by R. 3:28-6(c) (order
enrolling defendant into the pretrial intervention
program over the objection of the prosecutor), R. 3:26-
3 (material witness order), R. 4:42-2 (certification of
interlocutory order), R. 4:53-1 (order appointing
statutory or liquidating receiver), R. 5:8-6 (final
custody determination in bifurcated family action), and
R. 5:10-9 (order on preliminary hearing in adoption
action). An order granting or denying a motion to
extend the time to file a notice of tort claim pursuant to
N.J.S.A. 59:8-9, whether entered in the cause or by a
separate action, and any order either compelling
arbitration, whether the action is dismissed or stayed,
or denying arbitration shall also be deemed a final
judgment of the court for appeal purposes.
[R. 2:2-3(a).]
Rule 2:2-3(a)’s enumeration of the categories of orders deemed
appealable as of right “is not exhaustive.” Moon, 182 N.J. at 517 (citing
Pressler, Current N.J. Court Rules, cmt. on R. 2:2-4 (2005)).
In three decisions, we have decided whether specific categories of orders
that would otherwise be deemed interlocutory should be considered final for
purposes of appeal.
In Moon, we considered whether a trial court order granting a plaintiff’s
motion to file a late notice of claim under N.J.S.A. 59:8-9, a provision of the
15
Tort Claims Act, should be treated as final and appealable as of right. 182 N.J.
at 511-15. “First, and perhaps most fundamentally,” we noted that the
disputed “order does not dispose of all issues as to all parties, but merely
permits the litigation to proceed,” and we viewed that factor to favor a
decision denying an appeal as of right. Id. at 511-12. Second, we found no
special justification “to disregard the well-established policy” against
piecemeal litigation. Id. at 513. Third, we viewed the policy behind the Tort
Claims Act’s notice requirement -- prompt notification to a public entity of a
potential claim so that the entity can investigate, defend, and settle that claim
-- to weigh against an appeal as of right. Id. at 514. Fourth, we invoked
California court rulings addressing analogous orders under the California Tort
Claims Act, a statute that served as a model for our Tort Claims Act, and
concluded that California courts would view the order at issue in Moon to be
interlocutory. Id. at 514-15. Fifth, we stated that “situations in which a party
will be substantially prejudiced if an immediate appeal is not allowed,” such as
final custody determinations, preliminary adoption orders, and orders enrolling
criminal defendants in pretrial intervention, favor providing an appeal as of
right. Id. at 516-17. Applying those factors, we concluded “that the order
granting leave to file a late notice of claim is interlocutory and not final.” Id.
at 515.
16
Notwithstanding that ruling, we recognized that two “countervailing
considerations” -- the potential reduction of the financial burden on a public
entity if the entity is allowed an immediate appeal and the overall purpose of
the Tort Claims Act to effect a limited waiver of sovereign immunity --
warranted referral of the issue to the Civil Practice Committee for further
consideration. Id. at 515-16. We later adopted the Civil Practice Committee’s
recommendation that orders granting or denying leave to file a late notice of
tort claim under N.J.S.A. 59:8-9 should be deemed final, and we amended the
court rule. See R. 2:2-3(a)(3).
In two decisions that followed Moon, we addressed the appealability of
orders concerning the arbitration of disputes. In Wein v. Morris, we
considered whether an order compelling arbitration and staying the parties’
litigation was appealable as of right. 194 N.J. 364, 377-80 (2008). We noted
that the appeal provision of the Uniform Arbitration Act, enacted shortly after
the events that gave rise to Wein, provided for immediate appellate review of
several types of arbitration orders but contained “no express provision for an
appeal from an order compelling arbitration and staying the judicial
proceeding.” Id. at 380 (discussing N.J.S.A. 2A:23B-28). We stated that we
considered “it appropriate to deem an order compelling arbitration a final
judgment appealable as of right,” a change we determined would “provide
17
uniformity, promote judicial economy, and assist the speedy resolution of
disputes.” Ibid.Following Wein, we held in GMAC v. Pittella that “an order compelling
arbitration as to one or more, but not all, claims and parties” would also be
appealable as of right. 205 N.J. 572, 574 (2011). We reasoned that “reference
to arbitration, unlike most interlocutory orders, terminates the role of the court
altogether” and that “[t]he policy behind Wein applies irrespective of whether
other claims or parties remain in the trial court.” Id. at 586. We held that Rule
2:2-3(a) should “be further amended to permit appeals as of right from all
orders permitting or denying arbitration,” and we referred the matter to the
Civil Practice Committee. Id. at 586-87. The court rule was amended
pursuant to our decision. See R. 2:2-3(a)(3).
Thus, in the notice-of-tort-claim and arbitration settings, we diverged
from our general policy against piecemeal determinations to deem specific
categories of interlocutory orders final for purposes of appeal. GMAC, 205
N.J. at 586-87; Wein, 194 N.J. at 380; Moon, 182 N.J. at 511-15. In those
decisions, we 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
18
uniformity in appellate procedure as applied to similar categories of trial court
orders. See Wein, 194 N.J. at 380; Moon, 182 N.J. at 511-15.
Several of those factors inform our decision in this 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. See GMAC, 205
N.J. at 585 (“[A]ppellate courts should, and do, review interlocutory orders
when a litigant shows a meritorious basis for so doing.”). That review is
expedited to minimize prejudice and delay. See Pressler & Verniero, cmt. 1 to
R. 2:5-6 (“All appeals on leave granted are to be expedited.”). 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.
Second, in contrast to the legislative goals of the tort claims and
arbitration statutes reviewed in Moon, Wein, and GMAC, the Legislature’s
purpose in enacting the NJCRA -- to provide a remedy for deprivation of or
interference with civil rights -- would not be advanced by appeal as of right.
See N.J.S.A. 10:6-1 to -2; S. Judiciary Comm. Statement to S. No. 1558. 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.
19
Third, the NJCRA does not prescribe appellate review of some orders
and deny appellate review of other orders, as did the arbitration statute
reviewed in Wein. Accordingly, uniformity in the application of laws is not a
factor here. Compare N.J.S.A. 10:6-1 to -2 (providing no interlocutory
review), with N.J.S.A. 2A:24-1 to -11 (providing for an immediate appeal
based on whether the trial court decides to stay or dismiss the action pending
arbitration).
Fourth, an appeal as of right of the trial court’s qualified immunity
decision would not resolve this litigation. By virtue of plaintiff’s tort claims,
to which the defense of qualified immunity does not apply, the parties would
be required to incur the expense of trial even if the defendants were to prevail
on the issue of qualified immunity.
We perceive 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. Moon, 182 N.J. at 510; see also
Vitanza v. James, 397 N.J. Super. 516, 517-18 (App. Div. 2008) (noting the
importance of avoiding piecemeal litigation); House of Fire Christian Church
v. Zoning Bd. of Adjustment of Clifton, 379 N.J. Super. 526, 531 (App. Div.
2005) (same). We decline to add legal determinations denying the defense of
20
qualified immunity to the narrow class of interlocutory orders deemed final
and subject to direct appeal under Rule 2:2-3(a).
3.
We next consider defendants’ contention that we should conform Rule
2:2-3(a) to federal law by adopting the collateral order doctrine that governs
appellate practice in federal civil rights actions, and that federal preemption
principles mandate appeals as of right from legal determinations denying
qualified immunity under the NJCRA.
Federal appellate procedure prescribes that the United States Courts of
Appeals “have jurisdiction of appeals from all final decisions of the district
courts of the United States . . . except where a direct review may be had in the
Supreme Court.” 28 U.S.C. § 1291. An exception to that general requirement
of finality for appellate review is the collateral order doctrine, under which a
district court order is appealable if it is “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.’” Mitchell v. Forsyth, 472 U.S. 511, 524-25 (1985) (quoting
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)); see also
Lozano v. New Jersey, 9 F.4th 239, 244 (3d Cir. 2021) (applying the collateral
21
order doctrine to review a summary judgment determination denying qualified
immunity that raised only a legal issue in an action brought in federal court
under 42 U.S.C. § 1983).
In Mitchell, the United States Supreme Court held that exclusively legal
determinations denying qualified immunity in claims under 42 U.S.C. § 1983are appealable as of right under the collateral order doctrine. 472 U.S. at 526-
27. There, the issue on appeal was “a purely legal one: whether the facts
alleged (by the plaintiff, or, in some cases, the defendant) support a claim of
violation of clearly established law.” Id. at 528 n.9.
The Supreme Court further explained the collateral order doctrine in
Fankell. 520 U.S. at 916-23. There, the petitioners challenged an Idaho rule
of appellate procedure that required an order to be “final” in order to be
appealable, thus barring them from appealing an interlocutory order denying
qualified immunity in a civil rights action brought under 42 U.S.C. § 1983.
Ibid. On appeal, the petitioners relied on two arguments: the contention that
Idaho was required to follow the collateral order doctrine and “follow the
federal construction of a ‘final decision,’” id. at 916; and the assertion that 42
U.S.C. § 1983 preempted the Idaho appellate rule, id. at 918-23.
The Supreme Court rejected the petitioners’ contention that federal law
required Idaho to adopt the collateral order doctrine in cases brought under 42
22
U.S.C. § 1983. Id. at 916. The Court noted that the collateral order doctrine is
an application of 28 U.S.C. § 1291, a statute that governs only federal appeals.
Id. at 917. It stated that although some states have elected to adopt “a similar
‘collateral order’ exception” in appeals from decisions denying qualified
immunity in civil rights cases under 42 U.S.C. § 1983, it had “never suggested
that federal law compelled them to do so.” Ibid. The Supreme Court made
clear that states are free to adopt -- or to decline to adopt -- the collateral order
doctrine in such settings. 2 Ibid.In Fankell, the Supreme Court also addressed the question of whether
federal preemption principles required a state court adjudicating a claim under
42 U.S.C. § 1983 to authorize an appeal as of right from an order denying a
summary judgment motion premised on qualified immunity. Id. at 918-23. It
rejected the petitioners’ preemption argument on two grounds.
2
Our sister states are divided as to whether interlocutory appeals are available
for denials of qualified immunity. Some states have elected to adopt collateral
order doctrines aligning with the federal approach. See, e.g., Furlong v.
Gardner, 956 P.2d 545, 552 (Colo. 1998); Richardson v. Chevrefils, 552 A.2d
89, 92 (N.H. 1988); Murray v. White, 587 A.2d 975, 977-78 (Vt. 1991); Park
County v. Cooney, 845 P.2d 346, 349 (Wyo. 1992). Other states have declined
to follow the federal approach, instead relying on existing state appellate
procedures for interlocutory appeals. See, e.g., Rivera v. Washington, 784
S.E.2d 775, 779-80 (Ga. 2016); Barrus v. Mont. First Jud. Dist. Ct., 456 P.3d
577, 581-82 (Mont. 2020); Carrillo v. Rostro, 845 P.2d 130, 137-38, 140-41
(N.M. 1992).
23
First, the Court determined that the Idaho appellate rule challenged in
that case was neutral. Ibid. It distinguished the setting of Fankell from that of
its decision in Felder v. Casey, 487 U.S. 131, 138-50 (1988), in which it held
that a non-neutral Wisconsin notice-of-claim statute that barred a 42 U.S.C.
§ 1983 civil rights cause of action was preempted by federal law. 520 U.S. at
920-21. The Court noted in Fankell that “[u]nlike the notice-of-claim rule at
issue in [Felder],” the Idaho appellate rule under review “does not target civil
rights claims against the State,” but rather “generally permits appeals only of
‘judgments, orders and degrees which are final,’ without regard to the identity
of the party seeking the appeal or the subject matter of the suit.” Id. at 918
n.9. The Court observed that in contrast to the Wisconsin notice-of-claim
statute considered in Felder, the Idaho appellate rule at issue in Fankell was a
neutral procedural rule despite the fact that “it permits interlocutory appeals in
certain limited circumstances but denies an appeal here.” Ibid. The Court
thus made clear that a state rule of appellate procedure that does not target
appeals in civil rights actions is neutral for purposes of federal preemption,
even if it allows interlocutory appeals in certain settings but not in others.
Ibid.Second, the Supreme Court found it significant in Fankell that the Idaho
procedural rule did not determine the outcome of the plaintiff’s civil rights
24
action under 42 U.S.C. § 1983. Id. at 920. Distinguishing the Idaho rule from
the notice-of-claim statute held to be preempted in Felder, the Court observed:
Contrary to petitioners’ assertions, Idaho’s decision not
to provide appellate review for the vast majority of
interlocutory orders -- including denials of qualified
immunity in § 1983 cases -- is not “outcome-
determinative” in the sense that we used that term when
we held that Wisconsin’s notice-of-claim statute could
not be applied to defeat a federal civil rights action
brought in state courts under § 1983. The failure to
comply with the Wisconsin statute in Felder resulted in
a judgment dismissing a complaint that would not have
been dismissed -- at least not without a judicial
determination of the merits of the claim -- if the case
had been filed in a federal court.
[Id. at 920 (citing Felder, 487 U.S. at 153).]
As the Court noted, “because the notice-of-claim requirement would
‘frequently and predictably produce different outcomes’ depending on whether
§ 1983 claims were brought in state or federal court, it was inconsistent with
the federal interest in uniformity.” Id. at 920 (quoting Felder, 487 U.S. at
138). In contrast, the Idaho appellate rule -- clearly neutral and not
determinative of the outcome -- was not preempted by federal law. Id. at 918,
920.
The Supreme Court thus articulated principles that govern the question
of federal law raised in this appeal. First, the states are free to adopt or reject
25
the collateral order doctrine that 28 U.S.C. § 1291 prescribes for federal
appeals, even when the action is brought in state court pursuant to 42 U.S.C. §
1983. Fankell, 520 U.S. at 916-17; see also Mitchell, 472 U.S. at 524-27. 3
Second, when a challenged rule of state appellate procedure is neutral and does
not determine the outcome of the civil rights action, those factors weigh
heavily against federal preemption. Fankell, 520 U.S. at 918-23.
Guided by those principles, we reject defendants’ contention that federal
law mandates an appeal as of right from a legal determination rejecting
qualified immunity.
First, we do not agree with defendants that it is anomalous to treat orders
denying qualified immunity in NJCRA cases as interlocutory in light of the
final and appealable status of such orders pursuant to the collateral order
doctrine in civil rights cases brought in federal court under 42 U.S.C. § 1983.
A state may adopt or reject the collateral order doctrine even in actions
brought in state court under 42 U.S.C. § 1983, Fankell, 520 U.S. at 916-23,
and is clearly free to adopt or reject that doctrine in state court actions
premised on state civil rights statutes such as the NJCRA.
3
Defendants’ reliance on Furlong is misplaced. 956 P.2d at 545. The
Colorado Supreme Court’s decision to apply the collateral order doctrine in the
action under 42 U.S.C. § 1983 at issue there, id. at 550-52, does not mandate
that we adopt the federal approach in actions brought in New Jersey courts
under 42 U.S.C. § 1983 or in an NJCRA action such as this case.
26
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.
We also disagree with defendants’ contention that Rule 2:2-3(a), as
applied to this appeal, is preempted by federal law. First, Rule 2:2-3(a) is
clearly a neutral state procedural rule. With a narrow exception for “such
cases as are provided by law,” Rule 2:2-3(a)(3), the Rule generally prescribes a
finality requirement for appeals as of right. Like the Idaho procedural rule
reviewed in Fankell, Rule 2:2-3(a) does not target New Jersey civil rights
claims brought under the NJCRA, federal civil rights claims brought under 42
U.S.C. § 1983, or any other discrete category of actions. See Fankell, 520
U.S. at 918 n.9. As the Supreme Court observed in Fankell, a procedural rule
can be neutral for purposes of preemption analysis notwithstanding the fact
that it “permits interlocutory appeals in certain limited circumstances but
denies an appeal” of an order denying qualified immunity, as does Rule 2:2-
3(a). Ibid. The court rule challenged in this case is neutral for purposes of
preemption analysis.
27
Second, Rule 2:2-3(a) does not determine the outcome of this appeal, let
alone raise the specter of inconsistent dispositions of civil rights claims in state
and federal court. See Fankell, 520 U.S. at 921. The Rule does nothing more
than affect the procedure for and timing of the defendants’ appeal of the trial
court’s order denying qualified immunity, which is subject to discretionary
appellate review under Rule 2:2-4 and to an appeal as of right after a final
judgment under Rule 2:2-3(a). Rule 2:2-3(a) clearly does not “predictably
alter[] the outcome of [Section] 1983 claims depending solely on whether they
are brought in state or federal court.” See Felder, 487 U.S. at 153; see also
Fankell, 520 U.S. at 920. It is instead a neutral procedural rule that is not
outcome-determinative and is not preempted by federal law. Fankell, 520 U.S.
at 918-21.
We reiterate that the Appellate Division has the authority to grant
interlocutory review in the interest of justice, Rule 2:2-4, and that the appellate
court can and should review qualified immunity decisions on an expedited
basis where parties seeking to appeal demonstrate a “meritorious basis” for
such review, GMAC, 205 N.J. at 585. 4
4
Because of our disposition in this matter, we do not reach defendants’
contention that if the trial court’s denial of summary judgment as to qualified
immunity is subject to appeal as of right, the City of Newark is also entitled to
interlocutory review of the court’s denial of summary judgment as to
plaintiff’s negligence claim against the City.
28
IV.
The judgment of the Appellate Division is affirmed, and the matter is
remanded to the trial court for further proceedings in accordance with this
opinion.
CHIEF JUSTICE RABNER and JUSTICES ALBIN, SOLOMON, and
PIERRE-LOUIS join in JUSTICE PATTERSON’s opinion.
29