Your source for a New Jersey appeal and appellate practice by New Jersey appeal lawyer Jeff Mandel (author, New Jersey Appellate Practice)
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New Jersey Appeals
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Jeff Mandel's book from last year
(New Jersey Appellate Practice)
An order is interlocutory unless the case is FINAL as to ALL ISSUES and ALL PARTIES. If there is any issue left for the trial court, except the enforcement of previously-entered orders, then the case is not final and is therefore interlocutory.
If the order is interlocutory, you are required to seek leave to file an interlocutory appeal.
In New Jersey, if you are filing an interlocutory appeal, it is important to understand when you are required to seek permission to appeal and when you have an appeal as of right. The jurisdiction of the New Jersey Superior Court, Appellate Division and the Supreme Court of New Jersey is limited on interlocutory issues. Procedures are set forth in the Rules of Court.
If you seek to appeal an interlocutory ruling to the Appellate Division, the Appellate Division may grant leave to appeal, in the interest of justice, from an interlocutory order of a court or of a judge sitting as a statutory agent, or from an interlocutory decision or action of a state administrative agency or officer, if the final judgment, decision or action thereof is appealable as of right pursuant to R. 2:2-3(a), but no such appeal shall be allowed in cases referred to in R. 2:2-2(a).
"The discretionary jurisdiction of the Appellate Division over appeals taken from interlocutory decisions of lower courts and of state administrative officers and agencies exists as a result of the combination of constitutional provisions and court rules." Mandel, New Jersey Appellate Practice, chapter 7:2-2 (Gann 2012).
In the Appellate Division, the source of jurisdiction can be found in New Jersey Appellate Court Rule 2:2-4, which provides, "Except as otherwise provided by [New Jersey Court Rule] 3:38, the Appellate Division may grant leave to appeal, in the interest of justice, from an interlocutory order of a court or of a judge sitting as a statutory agent, or from an interlocutory decision or action of a state administrative agency or officer, if the final judgment, decision or action thereof is appealable as of right pursuant to [New Jersey Appellate Court Rule] 2:2-3(a), but no such appeal shall be allowed in cases referred to in [New Jersey Appellate Court Rule] 2:2-2(a)."
In the Supreme Court of New Jersey, the jurisdictional rule is New Jersey Appellate Court rule 2:2-2, which provides, "Appeals may be taken to the Supreme Court by its leave from interlocutory orders: (a) Of trial courts in cases where the death penalty has been imposed[;] (b) Of the Appellate Division when necessary to prevent irreparable injury; [and] (c) On certification by the Supreme Court to the Appellate Division pursuant to R. 2:12-1."
Pursuant to Court Rule 2:2-4, a motion for leave to appeal is granted only in the interest of justice. The problem is, however, that there is no precise definition of the "interest of justice". Experienced appellate lawyers gain an understanding of what it means to be in the interest of justice for purpose of an interlocutory appeal.
The Appellate Division has stated:
[W]e may grant leave to appeal where some grave damage or
injustice may be caused by the order below, such as may occur
when the trial court grants, continues, modifies, refuses or
dissolves an injunction, appoints a receiver or refuses an order
to wind up a pending receivership or to take the appropriate
steps to accomplish the purposes thereof, such as directing a
sale or other disposal of property held thereunder. We may also
be induced to grant leave where the appeal, if sustained, will
terminate the litigation and thus very substantially conserve the
time and expense of the litigants and the courts, as in the case
where the order attacked determines that the court or agency
below has jurisdiction of the subject matter or person.
Mandel, New Jersey Appellate Practice, ch. 10:2-1 (Gann 2011) (citation omitted).
"Clearly, the standard used by the Supreme Court ('irreparable injury') is intended to be different from the standard governing decisions as to leave to appeal an interlocutory order by the Appellate Division." Mandel, New Jersey Appellate Practice, ch. 15:2-1 (Gann 2012). Regretfully, there is no clear definition set forth in the Rules of Court. Chapter 15 of New Jersey Appellate Practice therefore sets forth the cases that address the standard and discusses the Court's incorporation of the standard under different factual scenarios.