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Leapfrog: Direct Certification of Cases By The Supreme CourtBruce D. Greenberg

Sometimes, parties who are going into the appellate process would love to skip the Appellate Division and go right to the Supreme Court. There’s not “an app for that,” but there are two Court Rules, Rule 2:12-1 and 2:12-2, that offer ways to leapfrog the Appellate Division and get to the Supreme Court.

Rule 2:12-1states that “[t]he Supreme Court may on its own motion certify any action or class of actions for appeal.” Rule 2:12-2 allows a party to file a “motion for certification of an appeal pending unheard in the Appellate Division.” Such a motion may be filed only within ten days of all briefs being filed in the Appellate Division.

While Rule 2:12-2 is limited to cases that are already pending in the Appellate Division, Rule 2:12-1 allows the Supreme Court to take up cases in which no appeal to the Appellate Division has yet been filed. The Court has granted review under Rule 2:12-1 in cases where the Appellate Division has not yet issued a decision, or even when a trial court has not yet ruled on dispositive motions.

There are no criteria stated in these rules as to when the Court will take up a case directly. But bypassing a ruling by the Appellate Division under either of these rules is extraordinary relief that is rarely granted. As a practical matter, a party seeking direct certification must demonstrate why the case should not follow the normal course of proceeding through briefing, argument, and decision at the Appellate Division level.

Cases where the Supreme Court has granted direct certification have almost invariably involved issues of extreme public importance as to which the Supreme Court would likely grant review after an Appellate Division decision anyway, often coupled with a need for a more immediate decision than the normal process of appellate review affords. Well-known cases such as In re Quinlan, 70 N.J.10 (1976), a “right to die” case, the surrogate motherhood case known as In re Baby M, 109 N.J. 396 (1988), and the more recent “judges’ pension case,” DePascale v. New Jersey, 211 N.J. 40 (2012), are among the relatively few cases where the Court has granted direct certification.

Cases such as these are exceptional, and justify direct certification. Most cases, however, though very important to the parties, who desire a quick decision as all parties do, do not justify skipping Appellate Division review. Review of trial level or administrative decisions by an intermediate appellate court, the Appellate Division, is designed to weed out certain cases that need not end up in the Supreme Court, and to illuminate those cases for the Supreme Court by producing a well-reasoned decision by a panel of three Appellate Division judges. In most instances, that process is preferable to leapfrogging over one level of review.

Thus, though the New Jersey Court Rules afford some avenues to go directly from a trial court, or from the queue of cases awaiting argument in the Appellate Division, to the Supreme Court, few cases will qualify for such expedited treatment. Nonetheless, parties who believe that their cases entail the combination of important public issues and need for extraordinary expedition can take their shot at direct certification, under these two Court Rules.