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How Can I Get My Case, Or My Company's Case, To The New Jersey Supreme Court?Bruce D. Greenberg

Every client, and every attorney, thinks that his or her case is the most important case in the judicial system. (We are right, of course). If the result at the trial level or the Appellate Division is not what we wanted, we then think about going to the New Jersey Supreme Court. It is not easy to get there. But here are some tips about how to do it.

There are several routes to the Supreme Court. Only one of them involves an easy path.

The easy path scenario is when there is a dissent in the Appellate Division’s decision. When that happens, the losing party can appeal as of right, but only on the issue(s) raised by the dissenting opinion. The Supreme Court is then required to consider the case.

All of the other circumstances require a choice by the Supreme Court to review a case, much like the United States Supreme Court largely controls which cases will come before it. If a case raises a “substantial” constitutional issue, the Court Rules say that there is an appeal as of right. But as a practical matter, the Supreme Court can determine that the constitutional issue is not “substantial” and dismiss the appeal at the threshold. As a result, in that and most other situations involving a final judgment, a petition for certification (that is, a request for the Court to grant review) is necessary.

The Court Rules say that the Supreme Court may grant a petition for certification if the case presents a question of “general public importance” for the Court to decide, or if the decision of the Appellate Division conflicts with another Appellate Division or Supreme Court ruling, or if it calls on the Supreme Court’s supervisory powers, or if “the interest of justice requires.” All of those standards are very general, and in reality, the Court will grant certification only if it believes that the case will affect the law. Generally, the Court will not take up a case merely because the result in the Appellate Division may have been wrong.

There is an art to crafting a petition for certification so as to persuade the Supreme Court to grant review. It is usually not enough to show that the Appellate Division erred in deciding the particular case at hand. Rather, the petition must demonstrate that the case has effects beyond just the parties involved, and that the Supreme Court needs to intervene because the matter being presented for its consideration would affect other cases as well. A petition will be granted if at least three members of the Supreme Court vote to grant review.

The more difficult paths are those that involve cases where no final judgment has yet been rendered. For example, a decision denying summary judgment, or disposing of part of a case but leaving the rest of the matter still pending, would require a motion for leave to appeal to the Supreme Court. Like a petition for certification, a motion for leave to appeal asks the Supreme Court to exercise its discretion to grant review. The test for leave to appeal is whether review is “necessary to prevent irreparable injury.”

Finally, without discussing every path to the Supreme Court in this post, if the case is truly unusual or extraordinary, and if time is of the essence, a party can ask the Supreme Court to grant “direct certification” within ten days after all briefs have been filed with the Appellate Division. Cases meriting direct certification are rare, however, and no one should count on that result in any particular case.

I’ve been fortunate enough to argue before the Supreme Court nine times. The Court is always prepared, highly interactive with the attorneys who appear before it, and very fair in its dispositions (even if one does not always agree with the results). If your case is able to get to the Court, you will have that same experience.