Winberry Realty Partnership v. Borough of Rutherford, 2016 N.J. Super. Unpub. LEXIS 1019 (App. Div. May 4, 2016). [Disclosure: I represented the successful plaintiffs-appellants on this appeal]. Qualified immunity is a significant defense that is available to defendants in cases under the federal Civil Rights Act, 42 U.S.C. §1983, and the New Jersey Civil Rights Act, N.J.S.A. 10:6-2. Courts are frequently encouraged to grant summary judgment awarding qualified immunity, in order to reduce the burden on public agencies in defending such cases. In this case, the Law Division did just that. The Appellate Division, however, reversed that ruling, finding that genuine issues of fact precluded qualified immunity. Judges Fasciale and Nugent issued the per curiam opinion of the Appellate Division.
The case arose out of plaintiffs’ non-payment of real estate taxes on a piece of property they owned in Rutherford. As a result of that non-payment, a tax sale certificate was sold. The purchaser of the tax sale certificate eventually sought to foreclose. Plaintiffs then attempted to pay the outstanding amount, including interest, in order to redeem the property. Unbeknownst to them, the day that they made that attempt was the final day that a court order permitted them to make payment in order to avoid foreclosure.
That day, plaintiff John Winberry telephoned the Borough’s Tax Collector, Caryn Miller, asking her to tell him how much was owed, including interest, so that he could make full payment. Miller said she was too busy to do that. When Winberry offered even to overpay, since Miller would not provide the actual amount due, Miller said that she would not accept payment “under any circumstances.” Plaintiffs had the money to pay off the amount due and avoid foreclosure, but Miller’s refusal to accept payment prevented that.
As a result, the property went into foreclosure. Plaintiffs had to expend large sums of money to rescue the property, which they eventually did. They then filed suit against the Borough and Miller.
The Law Division granted summary judgment, according both Miller and the Borough qualified immunity. The Appellate Division, applying de novo review, reversed.
“Neither the Borough nor Miller dispute that Winberry had a clearly established right to redeem the tax sale certificate, a right based in statutory law and two court orders. If, as Winberry asserts, Miller refused to timely redeem the tax sale certificate– not during the specific phone call, but at all– notwithstanding Winberry’s established right to do so, then the doctrine of qualified immunity would not be available to her.” Accordingly, summary judgment for Miller was reversed. And because the Law Division had granted the Borough qualified immunity solely because it had found Miller to have qualified immunity, summary judgment for the Borough was likewise reversed.
Qualified immunity is a powerful defense that often prevails for Civil Rights Act defendants. But where the facts do not support it, qualified immunity will not prevail.