Winberry Realty Partnership v. Borough of Rutherford (083156) (Bergen County & Statewide)

• Court: Supreme Court of New Jersey
• Decided: June 28, 2021
• Docket: A-22/53-19
• Status: Published

Opinion

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. In the interest of brevity, portions of an opinion may not have been summarized.

Winberry Realty Partnership v. Borough of Rutherford (A-22/53-19) (083156)

Argued January 19, 2021 -- Decided June 28, 2021

ALBIN, J., writing for a unanimous Court.

In this civil rights action, the Court considers whether the Borough of Rutherford’s Tax Collector is entitled to qualified immunity and, if not, whether the Borough may be liable for her actions. Plaintiffs allege (1) that the Tax Collector violated their clearly established constitutional and statutory right to redeem the tax sale certificate on their home before entry of a final foreclosure judgment; and (2) that the Borough is liable for the Tax Collector’s violation of their right because the Tax Collector is the Borough’s final policymaker in the area of tax sale certificate redemptions.

Plaintiffs fell into arrears on the taxes on their home in the Borough. To collect unpaid property taxes, a municipality may sell at public auction a tax sale certificate. The successful bidder agrees to pay the taxes due and may institute a foreclosure action if the property owner does not redeem the certificate within two years of the auction. The property owner has the right to redeem the certificate until barred by the judgment of the Superior Court. See N.J.S.A. 54:5-86; R. 4:64-6(b). Here, four years after buying the tax sale certificate on plaintiffs’ home, the purchaser initiated foreclosure proceedings. The trial court ordered that “redemption shall be permitted up until entry of final judgment, including the whole of the last day upon which judgment is entered.” (emphasis added).

After the date of redemption but before entry of final judgment, plaintiff John Winberry called the Tax Collector to determine the total amount needed to redeem the certificate. According to Winberry’s deposition testimony, the Tax Collector told him that she “[didn’t] have the time” to give him either the total amount or the per diem interest rate. Winberry testified that he then offered to pay an amount well over what he estimated to be the redemption amount and that the Tax Collector replied, “No. . . . [Y]ou’ve had years to pay this,” and “I can’t accept your check anymore.”

When deposed, the Tax Collector acknowledged the right to redemption at any time before entry of a final foreclosure judgment, and that her computer software could calculate arrearages “within a matter of minutes.” She testified that her policy as Tax Collector required that the property owner put the redemption request in writing and also stated that her policy was to contact the certificate holder to get the correct amount owed.

1 The day after plaintiffs attempted to redeem the certificate, the court entered the final foreclosure judgment. After costly legal proceedings, plaintiffs succeeded in having the foreclosure judgment overturned and reclaimed their property.

Plaintiffs brought this action under the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2, and 42 U.S.C. §§ 1983 and 1985, alleging that the Tax Collector and the Borough violated their constitutional, statutory, and common law rights to reclaim their property. The trial court granted summary judgment to defendants, finding that the Tax Collector was entitled to qualified immunity and the Borough derivative immunity. The Appellate Division reversed and reinstated the case against the Tax Collector but dismissed the Borough from the case, holding that plaintiffs failed to establish municipal liability because the Tax Collector’s policy was not the Borough’s policy. The Court granted certification regarding the Borough’s liability, 240 N.J. 64 (2019), and the denial of qualified immunity to the Tax Collector, 241 N.J. 88 (2020).

HELD: The Court affirms the decision to deny the Tax Collector qualified immunity. Based on the summary judgment record, the Tax Collector’s refusal to provide the redemption amount to plaintiffs because the request was not in writing or timely made was not objectively reasonable. The Court disagrees, however, that plaintiffs have not established the basis for municipal liability. The Tax Collector is the final policymaker on matters related to the redemption of tax sale certificates in the Borough. The Borough is liable if the Tax Collector violated the constitutional or statutory rights of plaintiffs.

1. To make out a CRA claim, plaintiffs must establish that: (1) the right of redemption is a substantive right conferred by the Tax Sale Law, N.J.S.A. 54:5-1 to -137, or the Constitution; (2) the Tax Collector deprived them of that right; and (3) the Tax Collector acted under color of law when she did so. Here, defendants concede that (1) and (3) are met. The issue is whether they deprived plaintiffs of the right of redemption. (pp. 20-21)

2. The Tax Sale Law clearly confers on plaintiffs a substantive right to redeem the tax sale certificate and reclaim their land. And the right to own and enjoy one’s property without arbitrary interference by the State is enshrined in the New Jersey Constitution. In this case, the chancery court ordered that the redemption of the certificate be paid “to the Tax Collector.” One of the essential duties of a municipal tax collector in the case of an outstanding tax sale certificate is to communicate to a property owner the amount necessary to redeem the certificate. A property owner cannot redeem a tax sale certificate if the tax collector will not tell him the redemption amount. (pp. 22-24)

3. Whether a public official is entitled to qualified immunity on summary judgment depends on (1) whether the evidence, viewed in the light most favorable to the plaintiff, establishes that the official violated the plaintiff’s constitutional or statutory rights, and (2) whether the right allegedly violated was clearly established at the time of the officer’s actions. Whether a right is clearly established is judged by a standard of objective

2 reasonableness. The ultimate question is this: was the law clearly established that when Winberry called and requested the redemption amount, the Tax Collector was obligated to provide that information promptly and to accept a redemption payment? (pp. 24-26)

4. When Winberry called the Tax Collector, a final foreclosure judgment had not yet been entered. The Tax Collector refused to provide the redemption amount even though she could calculate the arrearages within minutes. She told Winberry that she did not have the authority to accept his check, but both N.J.S.A. 54:5-86(a) and - Rule - - 4:64-6(b) stated otherwise, as did the court’s order. Although the Tax Collector testified that her policy required the property owner to provide a written redemption request, no law or regulation at the time mandated such a requirement. She stated that her policy was to contact the tax sale certificate holder to verify the amount owed, but she did not recall doing so. The Tax Collector withheld, or made no effort to secure, the information necessary for plaintiffs to vindicate their substantive right to reclaim their home. And she flatly refused to accept the redemption payment at a point when the right to redeem the tax sale certificate had not been cut off. The Tax Collector did not act in an objectively reasonable manner and therefore is not entitled to qualified immunity. (pp. 26-29)

5. Prudence dictates that a tax collector contact the tax certificate holder when a redemption figure is requested to determine the final redemption amount, and the certificate holder should know the amounts due and make that information immediately available to the tax collector upon request. (pp. 29-30)

6. A municipality may be accountable for the action of an official who possesses final authority to establish municipal policy and who exercises that authority in violation of a person’s rights. An official need only have final policymaking authority in a particular area or on a particular issue of municipal business to be a final policymaker. (pp. 30-33)

7. Here, Caryn Miller was the “Department Head” of the Borough’s Department of the Tax Collector, and, in that role, she served as the Borough’s policymaker in the realm of tax redemption. The Tax Sale Law identifies the tax collector as the sole person with the authority to accept payment to redeem a tax sale certificate. N.J.S.A. 54:5-54. As the Borough’s tax collector, Miller set the policy for the redemption of tax sale certificates. No other municipal official or body was empowered to set or veto the tax collector’s redemption procedures. Because Miller spoke as a final policymaker for the Borough on matters of redemption, Miller’s policy was the Borough’s policy. On that basis, the Borough may be held liable for Miller’s violation of the Tax Sale Law. (pp. 33-36)

AFFIRMED in part; REVERSED in part. REMANDED to the Law Division.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE ALBIN’s opinion.

3 SUPREME COURT OF NEW JERSEY A-22/53 September Term 2019 083156

Winberry Realty Partnership, John Winberry, Mary Lourdes Winberry, Celeste Winberry, and Gregory Winberry,

Plaintiffs-Appellants/Cross-Respondents,

v.

Borough of Rutherford, and Caryn Miller, in her official and individual capacities,

Defendants-Respondents/Cross-Appellants,

and

Stephen Krisch, in his individual capacity,

Defendant.

On certification to the Superior Court, Appellate Division .

Argued Decided January 19, 2021 June 28, 2021

Lawrence S. Lustberg argued the cause for appellants/cross-respondents (Gibbons and Lite DePalma Greenberg, attorneys; Lawrence S. Lustberg, Sylvia- Rebecca Gutiérrez, and Bruce D. Greenberg, on the briefs).

Kathy A. Kennedy argued the cause for respondents/cross-appellants (Hanrahan Pack, attorneys;

1 Thomas B. Hanrahan, of counsel and on the briefs, and Kathy A. Kennedy, on the briefs).

Joseph A. Fischetti argued the cause for amicus curiae Consumers League of New Jersey (Lowenstein Sandler, attorneys; Joseph A. Fischetti, on the brief).

Daniel M. Ortner, of the California and Virginia bars, admitted pro hac vice, argued the cause for amicus curiae Pacific Legal Foundation (Pacific Legal Foundation, attorneys; Steven Simpson, of counsel, and Mark Miller, on the brief).

John C. Gillespie, argued the cause for amici curiae New Jersey State League of Municipalities and New Jersey Institute of Local Government Attorneys (Parker McCay, attorneys; John C. Gillespie, on the brief).

Keith A. Bonchi argued the cause for amicus curiae Tax Collectors and Treasurers Association of New Jersey (Goldenberg, Mackler, Sayegh, Mintz, Pfeffer, Bonchi & Gill, attorneys; Keith A. Bonchi, of counsel and on the brief, and Elliott J. Almanza, on the brief).

Adam D. Greenberg argued the cause for amicus curiae National Tax Lien Association, Inc. (Honig & Greenberg, attorneys; Adam D. Greenberg, on the brief).

JUSTICE ALBIN delivered the opinion of the Court.

The right to enjoy and possess one’s property -- free from arbitrary

government interference -- has been deeply embedded in our laws from the

beginning of our Republic. That fundamental principle is the subject of t his

case.

2 Plaintiffs fell into arrears on the real estate taxes on their home located

in the Borough of Rutherford. In accordance with the New Jersey Tax Sale

Law (Tax Sale Law), N.J.S.A. 54:5-1 to -137, the Borough sold a tax sale

certificate to a purchaser, who paid the arrears. The sale of the certificate

entitled the purchaser to charge interest on the outstanding taxes and to

foreclose on the property if plaintiffs did not redeem the certificate in the

manner provided by the statute. The Tax Sale Law required that, to redeem

the certificate, plaintiffs pay the outstanding taxes, accumulated interest, and

costs to the Borough’s Tax Collector before the entry of a final foreclosure

judgment.

Plaintiffs attempted to redeem the tax sale certificate before the entry of

the final foreclosure judgment on their property, only to be turned away by the

Tax Collector. As a result of the denial of their right of redemption, plaintiffs

lost their home. After costly legal proceedings, plaintiffs succeeded in having

the foreclosure judgment overturned and reclaimed their property.

In this action brought under the New Jersey Civil Rights Act (CRA),

N.J.S.A. 10:6-1 to -2, and the Federal Civil Rights Act, 42 U.S.C. § 1983,

plaintiffs allege before this Court that defendants -- the Tax Collector and the

Borough -- violated their constitutional right of redemption and their statutory

right of redemption under the Tax Sale Law, which in turn protected their right

3 to the enjoyment and possession of their home. The trial court granted

summary judgment in favor of defendants, finding that the Tax Collector was

entitled to qualified immunity on the ground that she did not violate the clearly

established constitutional or statutory rights of plaintiffs.

The Appellate Division reversed and reinstated the case against the Tax

Collector. It concluded that, viewing the evidence in the light most favorable

to plaintiffs, the Tax Collector did not act in an objectively reasonable manner

and therefore was not entitled to qualified immunity. The Appellate Division,

however, dismissed the Borough from the case because plaintiffs failed to

establish municipal liability under the civil rights laws -- that is, failed to

establish that the Tax Collector’s policy was endorsed or adopted by the

Borough. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-94 (1978).

In short, the Appellate Division held that the “[Tax Collector’s] policy was not

the Borough’s policy.”

We affirm the Appellate Division’s decision to deny the Tax Collector

qualified immunity. Based on the summary judgment record, the Tax

Collector’s refusal to provide the redemption amount to plaintiffs because the

request was not in writing or timely made was not objectively reasonable. We

disagree, however, that plaintiffs have not established the basis for municipal

liability. The Tax Collector is the final policymaker on matters related to the

4 redemption of tax sale certificates in the Borough, and therefore, under

Monell, the Borough is liable if the Tax Collector violated the constitutional or

statutory rights of plaintiffs in this case.

We thus affirm in part and reverse in part the judgment of the Appellate

Division and remand to the Law Division for proceedings consistent with this

opinion.

I.

A short primer on tax sale certificates will be helpful to understand the

procedural and factual history of this case.

When real estate taxes fall into arrears, the municipality receives “a

continuous lien on the land” for the delinquent taxes as well as for “all

subsequent taxes, interest, penalties and costs of collection.” N.J.S.A. 54:5 -6

(eff. May 12, 1994);1 see also N.J.S.A. 54:5-7 to -8; accord Simon v.

Cronecker, 189 N.J. 304, 318 (2007). To collect the unpaid taxes, the

municipality may sell at public auction a tax sale certificate. N.J.S.A. 54:5-31.

“The successful bidder on a tax sale certificate agrees to pay to the

municipality the taxes or assessments due on the property, as advertised . . . .”

Simon, 189 N.J. at 319 (citing N.J.S.A. 54:5-31 to -32, -46). The issuance of

1 An amendment to N.J.S.A. 54:5-6 in 2016 made minor changes to the quoted language. See L. 2016, c. 5, § 8.

5 the tax sale certificate functions as “a conditional conveyance of the property

to the purchaser, subject to a person with an interest in the property having the

right to redeem the certificate, as prescribed by [N.J.S.A. 54:5-54].” Id. at 318

(citing N.J.S.A. 54:5-31 to -32, -46). “[I]f the property owner does not redeem

the tax certificate within two years of the auction, the holder may acquire title

to the property free and clear by ‘institut[ing] an action to foreclose the right

of redemption’ against anyone with an interest in the land.” Id. at 319 (second

alteration in original) (citing N.J.S.A. 54:5-86 to -87).

However, if the property owner redeems the certificate, the tax sale

certificate holder “is entitled to reimbursement for all taxes and assessments

paid on the property, as well as accrued interest and related costs.” Ibid.

(citing N.J.S.A. 54:5-58 to -60). The tax sale certificate holder has the

opportunity to file an affidavit with the tax collector setting forth the amount

due for redemption. See N.J.S.A. 54:5-60 to -62. The property owner has “the

right to redeem the tax sale certificate . . . ‘until barred by the judgment of the

Superior Court.’” Simon, 189 N.J. at 319 (quoting N.J.S.A. 54:5-86); see also

R. 4:64-6(b) (“Redemption may be made at any time until the entry of final

judgment . . . .”).

6 II.

A.

The following factual and procedural history is not in dispute.

Winberry Realty Partnership was formed by siblings John, Celeste,

Gregory, and Mary Lourdes Winberry. The Partnership owned a single-family

home in Rutherford, New Jersey, which was held for the benefit of the

Winberrys’ sister who is cognitively impaired. In 2001, the Partnership failed

to make property tax payments on the home. As a result, in October 2002, the

Tax Collector for the Borough of Rutherford, Caryn Miller, sold a tax sale

certificate on the Winberry property to American Tax Funding, LLC

(American Tax).

Almost four years later, with the tax sale certificate unredeemed,

American Tax notified the Partnership of its intent to foreclose on the

property. American Tax also requested that, before accepting a redemption

check, the Tax Collector contact it and verify the amount due on the tax sale

certificate as well as the allowable expenses.

In November 2006, American Tax filed an action in the Chancery

Division to foreclose on the Winberry property. John Winberry (Winberry),

acting pro se, filed an answer to the foreclosure complaint for the Partnership.

The chancery court, however, struck the answer because Winberry failed to

7 attend case management conferences, and therefore the matter proceeded

uncontested.

On May 5, 2008, the court entered an order setting the amount to redeem

the tax sale certificate at “$78,352.74, which amount includes subsequent

taxes, interest, together with lawful interest on said sum from January 31,

2008, together with costs of suit to be taxed in the sum of $1,157.50, which

sum includes a counsel fee of $500.00.”2 The court set the date of redemption

as June 19, 2008, and the place of redemption as the Rutherford Tax

Collector’s Office. Additionally, the court ordered that “redemption shall be

permitted up until entry of final judgment, including the whole of the last day

upon which judgment is entered.” (emphasis added); see N.J.S.A. 54:5-54, -

86. On June 19, 2008, the Tax Collector executed a Certification of Non-

Redemption affirming that the Partnership had not redeemed the tax sale

certificate as of that date.

On the afternoon of July 23, 2008 -- before entry of final judgment

-- Winberry called the Tax Collector to determine the total amount needed to

redeem the tax sale certificate. The Tax Collector declined to provide the

requested amount. That same day, American Tax moved for entry of a final

2 American Tax filed a certification with the chancery court averring the amount owed to redeem the tax sale certificate.

8 foreclosure judgment.3 The next day, the chancery court entered judgment,

and American Tax became the owner of the Rutherford property.

The Partnership retained counsel and moved to vacate the judgment.

Nearly a year later, on July 9, 2009, the chancery court vacated the foreclosure

judgment, and the Partnership redeemed the tax sale certificate and regained

ownership of the property.4

B.

Plaintiffs, the Winberry siblings and the Partnership, filed a complaint in

the Law Division, asserting civil rights claims under the New Jersey CRA and

42 U.S.C. §§ 1983 and 1985, as well as other claims, against defendants

Borough of Rutherford and its Tax Collector, Caryn Miller, in her individual

and official capacities. 5 Plaintiffs allege that the Tax Collector’s failure to

3 ATFH Real Property, LLC succeeded to American Tax’s interest in the foreclosure action. For convenience, we continue to refer to the plaintiff in that litigation as American Tax. 4 The chancery court vacated the foreclosure judgment because John Winberry did not have authority from his siblings to represent the interests of the Partnership. 5 The complaint also asserted claims that the Law Division dismissed for lack of timely notice and that are not the subject of this appeal: a tort claim against the Borough for negligent supervision and a tort claim against the Borough and the Tax Collector for intentional infliction of emotion distress. The Law Division also dismissed the claims against Stephen Krisch of the Office of Foreclosure within the Administrative Office of the Courts (the original 9 provide the redemption amount to Winberry, upon his request and before entry

of the foreclosure judgment, violated their constitutional, statutory, and

common law rights to reclaim their property. 6 Plaintiffs sought compensatory,

punitive, and emotional-distress damages, as well as attorney’s fees, interest,

and costs.

The issue of whether the Borough’s Tax Collector is entitled to qualified

immunity on plaintiffs’ civil rights claims comes before us on defendants’

motion for summary judgment. At this procedural stage, “we are required not

only to view the evidence in the light most favorable to [plaintiffs], but also to

draw all reasonable inferences in [plaintiffs’] favor that are supported by the

summary judgment record.” Baskin v. Martinez, 243 N.J. 112, 129 (2020)

(citing Gormley v. Wood-El, 218 N.J. 72, 86 (2014)). In canvassing the

record, including the deposition testimony, answers to interrogatories, and

pleadings, we now give plaintiffs the benefit of their “best case.” See ibid.

(quoting Gormley, 218 N.J. at 86).

caption of this case listed Krisch’s first name as “Steven,” which is a misspelling that we have corrected). 6 Whether plaintiffs have sufficiently pled a claim against the Borough under the New Jersey CRA is not an issue before us in this appeal.

10 C.

According to the deposition testimony of John Winberry, on the

afternoon of July 23, 2008, he had the funds to pay off the estimated amount

necessary to redeem the tax sale certificate held by American Tax. When he

called the Tax Collector and asked her for the precise redemption amount, she

responded, “I don’t have the time to give you the total amount. Can’t do it

today.” When Winberry asked for the per diem interest rate so that he could

calculate the interest accrued since the June 19 redemption date, the Tax

Collector stated, “I don’t have time for that.” Winberry then offered to pay an

amount well over the redemption amount that he estimated was necessary to

redeem the tax sale certificate. The Tax Collector replied, “No. . . . [Y]ou’ve

had years to pay this,” and “I can’t accept your check anymore.” The Tax

Collector told Winberry that she did not have “authority to accept” payment

because the court-ordered redemption date had passed, and she would not

accept a check from him.7

In her deposition, the Tax Collector acknowledged that a property owner

has the right to redeem a tax sale certificate at any time before entry of a final

7 In her interrogatory responses, the Tax Collector admitted that when Winberry called, she advised him that she could not give the amount needed to redeem the tax sale certificate at that time.

11 foreclosure judgment and that her office’s computer software could calculate

the arrearages, including interest owed, “within a matter of minutes.” She

stated, however, that her policy as Tax Collector required that the property

owner put the redemption request in writing. She also stated that her policy

was to contact the tax sale certificate holder to get the correct amount owed, a

point verified by the cashier of her office.

The Tax Collector could not recall whether she told Winberry that a

request for the redemption amount had to be in writing or whether she

attempted to verify with American Tax the amount owed to redeem the tax sale

certificate.

D.

We need not spend much time on the procedural history that is not

germane to this appeal. Two previous appeals preceded the present matter. In

the first appeal, the Appellate Division reversed the trial court’s dismissal of

plaintiffs’ complaint based on alleged discovery violations. In the second

appeal, the Appellate Division reversed the trial court’s grant of summary

judgment in favor of the Tax Collector on the basis of qualified immunity and

the Borough on the basis of derivative immunity and remanded to the trial

court to permit the completion of the depositions of witnesses and parties.

12 E.

After completion of discovery, the trial court again found that the Tax

Collector “performed her duties . . . in an objectively reasonable manner and

therefore enjoys qualified immunity.” Based on that finding, the court

determined that the Borough was immune as well. In particular, the court was

not persuaded that the Tax Collector’s “informal policy to check with the

lienholder’s attorney or representative before the generation of a payoff figure

rises to the level of an unreasonable, intentional, or malicious action” that

would justify stripping her of qualified immunity. Nor did that informal

policy, in the court’s view, represent “a Borough policy which has

systematically resulted in the deprivation of civil rights.” Accordingly, the

court granted summary judgment in favor of defendants and dismissed

plaintiffs’ complaint.

F.

In an unpublished opinion, the Appellate Division reversed the Law

Division’s grant of qualified immunity to the Tax Collector but affirmed the

dismissal of plaintiffs’ claims against the Borough.8

8 The Appellate Division also affirmed the Law Division’s denial of plaintiffs’ cross-motion for partial summary judgment and plaintiffs’ motion to compel discovery. Those rulings are not at issue on appeal.

13 The Appellate Division determined that the trial court “seemingly

applied a mistaken notion” about the grant of qualified immunity to a public

official. It held that the Tax Collector had a “statutory, ministerial obligation

to provide the information Winberry requested without delay or consultation

with the purchasers of the tax sale certificate.” According to the Appellate

Division, the Tax Collector’s “informal” or “discretionary policy” not to

inform the property owner of the amount necessary to redeem the tax sale

certificate until after conferring with the certificate holder violated the

Partnership’s right of redemption under N.J.S.A. 54:5-54 and the chancery

court’s order. Moreover, it decided that the Tax Collector’s refusal to provide

Winberry with the redemption amount when her computer could produce the

result in minutes was “objectively unreasonable.”

The Appellate Division noted that if “[the Tax Collector] refused to

timely redeem the tax sale certificate -- not during the specific phone call, but

at all -- . . . then the doctrine of qualified immunity would not be available to

her.” In the court’s view, “once the Partnership elected to exercise the legal

right to redemption, any obstruction created by a public official’s failure to

fulfill her ministerial duties was inherently unreasonable.” Based on a review

of the summary judgment record in the light most favorable to plaintiffs, the

Appellate Division denied the Tax Collector qualified immunity on the civil

14 rights claims and concluded that the disputed material facts must be left to a

factfinder.9

On the other hand, the Appellate Division ruled that the Tax Collector,

not the Borough, deprived plaintiffs of the right of redemption and that the

Borough could not be held vicariously liable for the Tax Collector’s policy

under either § 1983 or the CRA. It concluded that “[the Tax Collector’s]

policy was not the Borough’s policy.” Accordingly, the court affirmed the

Law Division’s grant of summary judgment in favor of the Borough.

We granted plaintiffs’ petition for certification “limited to . . . the issue

of whether the tax collector has final policymaking authority such that the

Borough may be liable for her actions.” 240 N.J. 64 (2019). We also granted

defendants’ cross-petition for certification challenging the Appellate

Division’s denial of qualified immunity to the Tax Collector. 241 N.J. 88

(2020). We granted the motions of the Consumers League of New Jersey;

Pacific Legal Foundation; New Jersey State League of Municipalities and New

9 The Appellate Division and most of the advocates before our Court were under the mistaken impression that at the time of the events in this case, the redemption statute, N.J.S.A. 54:5-54, required a written request for the redemption amount. The writing-requirement provision of the redemption statute, however, was not enacted until 2010, and therefore was not the law in 2008 at the time that Winberry spoke with the Tax Collector. Compare N.J.S.A. 54:5-54 (eff. Aug. 5, 1997) (L. 1997, c. 190, § 4), with N.J.S.A. 54:5-54 (eff. Jan. 18, 2010) (L. 2009, c. 320, § 10).

15 Jersey Institute of Local Government Attorneys; Tax Collectors and Treasurers

Association of New Jersey; and National Tax Lien Association, Inc. to

participate as amici curiae.

III.

Plaintiffs claim that the Tax Collector is not entitled to qualified

immunity because she violated their clearly established constitutional and

statutory right to redeem the tax sale certificate and retain their home before

entry of a final foreclosure judgment. Plaintiffs contend that the Tax

Collector’s actions -- refusing to provide Winberry the redemption amount and

stating she could not accept payment, even an overpayment, after the

redemption date -- directly contravened the Tax Sale Law and were objectively

unreasonable. Plaintiffs maintain that even if the Tax Collector had an

informal policy of verifying with the tax sale certificate holder the redemption

amount due, she did not do so, and, in any event, an indefinite delay in

conducting a due diligence verification could not defeat plaintiffs’ right to

timely redeem the certificate.

Plaintiffs further assert that, under state law, the Tax Collector is the

Borough’s final policymaker in the area of tax sale certificate redemptions.

From that premise, plaintiffs reason, under the jurisprudence interpreting the

16 CRA and 42 U.S.C. § 1983, the Borough is liable for the Tax Collector’s

violation of their constitutional rights and statutory rights, specifically those

conferred by the Tax Sale Law.

The Consumers League of New Jersey and Pacific Legal Foundation

advance positions in support of plaintiffs’ arguments. They also collectively

contend that the reasonableness of the Tax Collector’s refusal to provide the

redemption amount must be assessed against plaintiffs’ clearly established

statutory right to redeem the tax sale certificate before the entry of final

judgment and the chancery court’s order echoing that right.

Defendants argue that the Tax Collector is entitled to qualified immunity

because her conduct during the July 23, 2008 telephone call with Winberry

was “objectively reasonable.” Defendants explain that the redemption amount

could not be provided over the telephone because the Tax Collector’s practice

was “to request that [the property owner] put the redemption request in

writing” and to first consult with the tax sale certificate holder before giving a

final redemption calculation. Defendants assert that plaintiffs did not have a

clearly established right to demand, without delay, a redemption figure over

the telephone given that the Tax Collector had to confirm the amount owed

with the tax sale certificate holder. According to defendants, even had the Tax

17 Collector provided to Winberry the per diem rate to calculate the amount of

interest due on the certificate since the June 19, 2008 redemption date, that

would not have accounted for the costs and fees due to the certificate holder.

Additionally, defendants maintain that the Tax Sale Law barred the Tax

Collector from accepting an overpayment from plaintiffs and that “it would

have been perfectly reasonable for [her]” to have assumed that a final

foreclosure judgment already had been entered after the June 19 redemption

date had passed. Defendants contend that even if the Tax Collector’s practices

and understanding of the law were mistaken, she still acted in an objectively

reasonable manner.

Defendant Borough further argues that if the Tax Collector’s policy

deprived the Winberrys of their right of redemption under the Tax Sale Law ,

that policy was never authorized by and cannot be attributed to the Borough.

According to the Borough, the Tax Collector carried out ministerial duties in

enforcing the Tax Sale Law, guided by the regulations of New Jersey’s

Department of Community Affairs, and “is not the final policymaker in the

area of tax redemptions.”

Amici New Jersey State League of Municipalities and New Jersey

Institute of Local Government Attorneys; Tax Collectors and Treasurers

Association of New Jersey; and National Tax Lien Association, Inc. argue

18 collectively that the Tax Collector’s policy of contacting the tax sale certificate

holder was not only reasonable, but also judicially mandated, citing Schnitzer

v. Rinderer, 17 N.J. Tax 136 (Tax 1998), aff’d, 318 N.J. Super. 322 (App. Div.

1999). The League of Municipalities and Institute of Local Government

Attorneys advance two significant issues not raised by defendants. They assert

that plaintiffs have pled only a federal civil rights claim -- not a CRA claim --

against the Borough, and that 42 U.S.C. § 1983 does not authorize a cause of

action to vindicate a violation of New Jersey’s Tax Sale Law. Amici also

assert that nothing in the record suggests a basis to support a federal due

process violation.

IV.

We granted certification on two issues: whether the Tax Collector is

entitled to qualified immunity on plaintiffs’ civil rights claims and whether the

Tax Collector acted as the Borough’s final policymaker on matters relating to

the redemption of tax sale certificates. The resolution of those issues will

determine whether the Tax Collector and the Borough face potential liability

on plaintiffs’ civil rights claims.

Amici League of Municipalities and Institute of Local Government

Attorneys have raised issues that were not pressed by defendants or developed

before the trial court or Appellate Division concerning whether plaintiffs have

19 pled a CRA claim against the Borough and whether plaintiffs have a basis for a

federal due process claim against defendants. Our customary practice is not to

address issues raised for the first time by amici curiae on appeal to this Court.

In re Request to Modify Prison Sentences, 242 N.J. 357, 396 (2020). Those

issues must be developed by the parties in the appropriate forum. Therefore,

for our purposes here, we will proceed as though there is a properly pled CRA

claim against the Borough and a valid federal due process claim against

defendants.

We first address whether the Borough of Rutherford’s Tax Collector is

entitled to qualified immunity in this civil rights action, which alleges that she

unlawfully thwarted plaintiffs’ right to redeem the tax sale certificate and save

their home from foreclosure. We begin by discussing the nature of the right at

issue and then turn to the defense of qualified immunity asserted by

The primary focus of plaintiffs’ claims is the alleged failure of the Tax

Collector to adhere to the provisions of the Tax Sale Law. That law allowed

plaintiffs to pay off the accumulated tax arrearages on their property by

20 redeeming the tax sale certificate held by American Tax before entry of a final

judgment of foreclosure. See N.J.S.A. 54:5-54, -86(a).

Plaintiffs’ cause of action is mostly grounded in the CRA. N.J.S.A.

10:6-2(c) provides that “[a]ny person who has been deprived of . . . any

substantive rights, privileges or immunities secured by the Constitution or laws

of this State . . . by a person acting under color of law” may bring an action for

damages. (emphasis added). To make out a CRA claim, plaintiffs must

establish that: (1) the right of redemption -- in essence, the right to reclaim

one’s home -- is a substantive right conferred by the Tax Sale Law or the

Constitution; (2) the Tax Collector deprived them of that right; and (3) the Tax

Collector was “acting under color of law” when she did so. See Tumpson v.

Farina, 218 N.J. 450, 473 (2014) (citing N.J.S.A. 10:6-2(c)).

Defendants do not contest that the right of redemption confers on

plaintiffs a substantive right -- the right to maintain possession of their home,

provided that plaintiffs complied with the dictates of the Tax Sale Law . Nor

do they contest that the Tax Collector was acting under color of law during her

interaction with Winberry. The issue is whether defendants deprived plaintiffs

of the right of redemption.

21 B.

One of the important purposes of the Tax Sale Law “is to give the

property owner the opportunity to redeem the [tax sale] certificate and reclaim

his land.” Simon, 189 N.J. at 319. A property owner has “the right to redeem

the tax sale certificate at any time before the final date for redemption set by

the court,” and that right of redemption continues “until barred by the

judgment of the Superior Court.” Ibid. (first citing N.J.S.A. 54:5-54; and then

quoting N.J.S.A. 54:5-86(a)). Likewise, Rule 4:64-6(b) provides that

“[r]edemption may be made at any time until the entry of final judgment.”

Additionally, in accordance with the applicable statutes and court rule, the

Chancery Division’s redemption order in this case specifically provided that

“redemption shall be permitted up until entry of final judgment, including the

whole of the last day upon which judgment is entered.”

At the time that Winberry made his telephone call to the Tax Collector,

the Tax Sale Law did not require that he put his request for the redemption

amount in writing. See N.J.S.A. 54:5-54 (eff. Aug. 5, 1997) (L. 1997, c. 190,

§ 4). Later, the Legislature amended N.J.S.A. 54:5-54 to include a writing

requirement: “A request for a redemption calculation shall be made in writing

to the tax collector.” L. 2009, c. 320, § 10. Therefore, the Tax Collector’s

22 purported informal policy requiring requests for redemption calculations to be

in writing was not mandated by the Tax Sale Law in 2008.

The Tax Sale Law ensures “the delinquent property owner’s right to fair

treatment in the collection of [delinquent property] taxes.” Varsolona v. Breen

Cap. Servs. Corp., 180 N.J. 605, 622 (2004). The equitable right of

redemption also serves to “protect property owners from forfeiting their

homes” when they are able to pay all outstanding taxes, interests, and various

costs and expenses before entry of final judgment. Simon, 189 N.J. at 319,

322 n.10; see also N.J.S.A. 54:5-58 to -62, -97.1. Notably, the property owner

whose home is the subject of a foreclosure judgment in favor of a tax sale

certificate holder faces the loss of all equity in the home. See, e.g., Simon,

189 N.J. at 313-14.

Importantly, as well, “the certificate holder’s interest is subordinate to

the property owner’s right of redemption,” id. at 319-20 (citing N.J.S.A. 54:5-

54); the purchase of a tax sale certificate “does not divest the delinquent owner

of his title to the land,” Township of Jefferson v. Block 447A, Lot 10, 228 N.J.

Super. 1, 4 (App. Div. 1988).

The Tax Sale Law clearly confers on plaintiffs a substantive right to

redeem the tax sale certificate and “reclaim [their] land.” See Simon, 189 N.J.

at 319. Indeed, few rights are more well-established than the right to own and

23 enjoy one’s property without arbitrary interference by the State. That

fundamental right is enshrined in our State Constitution. See N.J. Const. art. I,

¶ 1 (“All persons . . . have certain natural and unalienable rights, among which

are those . . . of acquiring, possessing, and protecting property . . . .”); see also

Harz v. Borough of Spring Lake, 234 N.J. 317, 333 (2018) (“Here, the nature

of the substantive right at issue -- a property right -- is clearly identifiable.”).

In this case, the chancery court ordered that the redemption of the tax

sale certificate be paid “to the Tax Collector” “at the Office of the Tax

Collector of the Borough of Rutherford.” See N.J.S.A. 54:5-98 (“[T]he court

may order that the redemption shall be made to the tax collector of the

municipality at his official office during business hours . . . .”).

One of the essential duties of a municipal tax collector is to

communicate to a property owner the amount of taxes owed to the

municipality, and, in the case of an outstanding tax sale certificate, the amount

necessary to redeem the certificate. See N.J.S.A. 54:5-54. Obviously, a

property owner cannot redeem a tax sale certificate if the tax collector cannot

or will not tell him the redemption amount.

C.

The Tax Collector has asserted the defense of qualified immunity. “The

doctrine of qualified immunity generally protects government officials from

24 civil liability for discretionary acts that do ‘not violate clearly established

statutory or constitutional rights of which a reasonable person would have

known.’” Baskin, 243 N.J. at 127 (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). When applicable, qualified immunity shields public

officials from lawsuits brought under both our federal and state civil rights

statutes. See Brown v. State, 230 N.J. 84, 97-98 (2017).

“Qualified immunity is ‘an entitlement not to stand trial or face the other

burdens of litigation’”; it is “an immunity from suit rather than a mere defense

to liability.” Saucier v. Katz, 533 U.S. 194, 200 (2001) (quoting Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985)), overruled in part on other grounds by

Pearson v. Callahan, 555 U.S. 223, 236-43 (2009). “[Q]ualified immunity

ordinarily is a question of law to be decided by the court.” Baskin, 243 N.J. at

128 (citing Brown, 230 N.J. at 98-99). In reviewing a defendant public

official’s application for qualified immunity at the summary judgment stage,

the court must view the evidence and all reasonable inferences drawn from the

evidence “in the light most favorable to” the plaintiff who claims that the

official violated his rights. Id. at 129 (citing Gormley, 218 N.J. at 86).

In short, whether a public official is entitled to qualified immunity on

summary judgment depends on “(1) whether the evidence, viewed in the light

most favorable to the plaintiff, establishes that the official violated the

25 plaintiff’s constitutional or statutory rights, and (2) whether the right allegedly

violated was ‘clearly established’ at the time of the officer’s actions.” Id. at

128 (citing Saucier, 533 U.S. at 201-02). Whether a right is “clearly

established” is judged by a standard of objective reasonableness. Ibid. “In

other words, ‘[t]he contours of the right must be sufficiently clear that a

reasonable official would understand that what [s]he is doing violates that

right.’” Ibid. (first alteration in original) (quoting Gormley, 218 N.J. at 113).

The ultimate question in determining whether the Tax Collector is

entitled to qualified immunity is this: was the law clearly established that

when Winberry called and requested the amount necessary to redeem the tax

sale certificate, the Tax Collector was obligated to provide that information

promptly and to accept a redemption payment?

Viewing the evidence in the light most favorable to plaintiffs and guided

by the clear dictates of the Tax Sale Law, we conclude, as did the Appellate

Division, that the Tax Collector did not act in an objectively reasonable

manner, and therefore she is not entitled to qualified immunity. We come to

that conclusion for the following reasons.

Despite the fact that the chancery court had set the redemption date as

June 19, 2008, its order specifically provided, in accordance with N.J.S.A.

26 54:5-86(a) and Rule 4:64-6(b), that “redemption shall be permitted up until

entry of final judgment, including the whole of the last day upon which

judgment is entered.” Generally, “equity abhors a forfeiture,” see Dunkin’

Donuts of Am., Inc. v. Middletown Donut Corp., 100 N.J. 166, 182 (1985),

and that axiom perhaps has no greater force than when the forfeiture at issue is

a home.

Under the Tax Sale Law, the Tax Collector’s duty was to facilitate, not

thwart, the redemption of the tax sale certificate so that plaintiffs could save

their home. After the redemption date had passed, the last remaining step was

the entry of a final judgment of foreclosure. See N.J.S.A. 54:5-86(a); R. 4:64-

6(b). The point of no return for plaintiffs was the day of the final foreclosure

judgment, and therefore they had to redeem the tax sale certificate before the

close of that day. Time was of the essence.

On July 23, 2008, when Winberry called the Tax Collector and spoke

with her, a final foreclosure judgment had not yet been entered. Winberry

needed to know the amount owed to redeem American Tax’s tax sale

certificate in order to cut a check and reclaim his family’s home. He averred

that he had the monies to do so.

But, according to Winberry, when he asked the Tax Collector for the

redemption amount, she responded, “Can’t do it today.” When he asked for

27 the per diem interest rate since June 19, so that he could calculate the amount

owed, she responded, “I don’t have time for that.” When he offered to pay an

amount greater than the likely redemption amount, she responded, “No. . . .

[Y]ou’ve had years to pay this.” She made those comments despite her later

concession that her office computer could calculate the arrearage amount due,

including interest, within minutes. She told Winberry that she did not have the

authority to accept his check because the redemption date had passed, but both

N.J.S.A. 54:5-86(a) and Rule 4:64-6(b) clearly stated otherwise, as did the

chancery court’s order. See also Simon, 189 N.J. at 319.

Although the Tax Collector testified in her deposition that her office

policy required the property owner to provide a written redemption request, no

law or regulation at the time mandated such a requirement, nor apparently did

she communicate that requirement to Winberry. Last, she stated that her

policy was to contact the tax sale certificate holder to verify the amount owed,

but she did not recall ever making an effort to do so on the afternoon of July

23.

In short, viewing the summary judgment record in the light most

favorable to plaintiffs, the Tax Collector left Winberry, a property owner

desperate to save his family’s home, with no means to exercise his clearly

established statutory right to redeem the tax sale certificate. The Tax

28 Collector, in essence, held the keys to plaintiffs’ home. She withheld, or made

no effort to secure, the information necessary for plaintiffs to vindicate their

substantive right to reclaim their home under the Tax Sale Law. Additionally,

she flatly refused to accept the redemption payment at a point when the right to

redeem the tax sale certificate had not been cut off. Under those

circumstances, and under the governing standard of review, we determine that

the Tax Collector did not act in an objectively reasonable manner and therefore

is not entitled to qualified immunity.

In reaching that determination, we do not suggest that a tax collector

should not communicate with the tax sale certificate holder to ensure the

correctness of the redemption figure. 10 Indeed, prudence dictates that the tax

collector contact the tax certificate holder to determine any additional interest

or costs due to redeem the tax sale certificate since the redemption date set by

the chancery court’s order.11

10 We note that nothing in the Tax Court’s decision in Schnitzer, which is cited by defendants, suggested a tax collector could categorically refuse to allow a property owner to redeem a tax sale certificate, as final judgment loomed, because of the tax collector’s or certificate holder’s refusal to timely ascertain the amount due. See 17 N.J. Tax at 143-51. 11 If the tax sale certificate holder advises the tax collector orally or by electronic means that additional interest and costs have been incurred, the certificate holder should promptly file an affidavit afterwards to verify the redemption amount in accordance with N.J.S.A. 54:5-60 to -62.

29 But, given that a property owner has a statutory right to redeem the

certificate until the day of entry of the foreclosure judgment, the certificate

holder should know the amounts due and make that information immediately

available to the tax collector upon request. An inexcusable delay in providing

information to a property owner attempting to redeem the certificate in

accordance with the dictates of the Tax Sale Law cannot justify the denial of

the property owner’s right of redemption. 12

VI.

We next address the Borough’s potential liability on the CRA and

§ 1983 claims.

The legal principles governing the liability of a municipality under the

CRA and § 1983 are essentially the same. See, e.g., Ingram v. Township of

12 Before the trial court and the Appellate Division, and even in the cross- petition and response by the parties, the issue of qualified immunity was cast broadly, without distinguishing between the CRA and 42 U.S.C. § 1983 claims. Amici curiae League of Municipalities and Institute of Local Government Attorneys have challenged the basis for a § 1983 claim, noting that § 1983 vindicates only rights guaranteed by the Federal Constitution and federal law -- not state law. We will not, in the first instance, address whether plaintiffs have a legitimate federal due process claim or whether the Tax Collector would be entitled to qualified immunity on such a claim. It is enough, for our purposes here and on the record before us, to recognize the presence of a substantive property right conferred by the Tax Sale Law that may be vindicated under the CRA.

30 Deptford, 911 F. Supp. 2d 289, 298 (D.N.J. 2012); see also Tumpson, 218 N.J.

at 474 (“[O]ur State Civil Rights Act is modeled off of the analogous Federal

Civil Rights Act, 42 U.S.C. § 1983, and . . . . [t]he interpretation given to

parallel provisions of Section 1983 may provide guidance in construing our

Civil Rights Act.”).

Under the CRA and § 1983, a municipality can be held liable only if it

causes harm through “the implementation of ‘official municipal policy.’”

Lozman v. City of Riviera Beach, 585 U.S. ___, 138 S. Ct. 1945, 1951 (2018)

(quoting Monell, 436 U.S. at 691); see also Stomel v. City of Camden, 192

N.J. 137, 145 (2007). A municipality is not legally accountable solely because

of the acts of one of its employees -- acts that do not represent official policy

-- under the doctrine of respondeat superior. Stomel, 192 N.J. at 145 (citing,

e.g., Monell, 436 U.S. at 690-91); see also Pembaur v. City of Cincinnati, 475

U.S. 469, 479 (1986) (“The ‘official policy’ requirement was intended to

distinguish acts of the municipality from acts of [its] employees . . . .”).

Municipalities, however, delegate authority to officials “whose edicts or

acts may fairly be said to represent official policy,” and in those circumstances

municipal liability may attach. Stomel, 192 N.J. at 145 (quoting Monell, 436

U.S. at 694); see also Pembaur, 475 U.S. at 480 (“[I]t is plain that municipal

liability may be imposed for a single decision by municipal policymakers

31 under appropriate circumstances.”). In short, “a municipality may be

accountable for the action of an official who ‘possesses final authority to

establish municipal policy’” and who exercises that authority in violation of a

person’s rights. Besler v. Bd. of Educ. of W. Windsor-Plainsboro Reg’l Sch.

Dist., 201 N.J. 544, 565 (2010) (quoting Stomel, 192 N.J. at 146).

“Whether ‘an official ha[s] final policymaking authority is a question of

state law.’” Id. at 566 (alteration in original) (quoting Stomel, 192 N.J. at

146). The relevant inquiry is whether the official violated a person’s rights

while exercising “final policymaking authority” on behalf of the municipality.

See ibid. (quoting Stomel, 192 N.J. at 146).

For example, in Stomel, we concluded that the Mayor of Camden was

the city’s “policy-maker” when he removed the municipal public defender

allegedly in retaliation for whistleblowing activity. 192 N.J. at 141-42, 151-

53. Although the City Council had veto power over the Mayor’s removal

decisions, we explained that “the Council effectively ratified the Mayor’s

action when it did not exercise [that] power,” and therefore municipal liability

attached. Id. at 153.

Similarly, in Besler, we determined that a school board president acted

as a “final policymaker” when he silenced an aggrieved parent during the

public comment period of a school board proceeding. 201 N.J. at 554-55, 566-

32 68. We added that even if the other board members had the authority to

overrule the school board president, “they obviously acquiesced in the decision

to silence [the parent].” Id. at 567. We also noted that an “official need only

have final policy-making authority in ‘a particular area[] or on a particular

issue’ of municipal business to be [a] final policymaker.” Ibid. (first alteration

in original) (quoting McMillian v. Monroe County, 520 U.S. 781, 785 (1997)).

Cases in which courts have found local government officials to be final

policymakers for § 1983 purposes abound. See, e.g., McGreevy v. Stroup, 413

F.3d 359, 367-69 (3d Cir. 2005) (school superintendent); Sunkett v. Misci, 183

F. Supp. 2d 691, 710-11 (D.N.J. 2002) (city attorney); Hutchison v. City of

Huntington, 479 S.E.2d 649, 662-63 (W. Va. 1996) (city planning supervisor);

Dempsey v. Johnson, 69 N.E.3d 236, 251-52 (Ill. App. Ct. 2016) (village

clerk); Flanders v. Maricopa County, 54 P.3d 837, 846-47 (Ariz. Ct. App.

2002) (sheriff); Sudul v. City of Hamtramck, 562 N.W.2d 478, 481 (Mich. Ct.

App. 1997) (police chief).

In light of our jurisprudence and precedents under the CRA and § 1983,

the Tax Collector was clearly a final policymaker for the Borough of

Rutherford when she denied plaintiffs the opportunity to redeem the tax sale

33 certificate on July 23, before the entry of a foreclosure judgment on their

property the next day.

The position of municipal tax collector is a creature of statute.

Depending on the form of government of the municipality, the tax collector is

appointed by the municipality’s “governing body or chief executive,” N.J.S.A.

40A:9-141, for a term of four years, N.J.S.A. 40A:9-142. A tax collector who

acquires tenure or who receives a tax collector certificate and has been

reappointed after serving for no less than four consecutive years may be

removed “only for good cause.” N.J.S.A. 40A:9-145.8(a) to (b).

Caryn Miller was the “Department Head” of the Borough’s Department

of the Tax Collector, 13 and, in that role, she served as the Borough’s

policymaker in the realm of tax redemption. A public official, such as Miller,

can be a final policymaker even though her authority is limited to “a particular

area” or “‘a particular issue’ of municipal business.” See Besler, 201 N.J. at

567 (quoting McMillian, 520 U.S. at 785).

The Tax Sale Law identifies the tax collector as the sole person with the

authority to accept payment to redeem a tax sale certificate. N.J.S.A. 54:5-54.

13 Department of Tax Collector, Borough of Rutherford, N.J., https://www.rutherfordboronj.com/departments/tax-collector (last visited June 3, 2021).

34 In her role as the Borough’s tax collector, Miller set the policy for the

redemption of tax sale certificates. No other municipal official or body was

empowered to set or veto the tax collector’s redemption procedures.

By her own account, Miller had implemented unwritten policies and

procedures governing redemption during her tenure as tax collector. For

instance, even before the practice was directly authorized by statute, Miller

testified that she required a property owner seeking a redemption calculation to

submit that request in writing. Additionally, before giving a redemption

figure, Miller stated it was her policy to check with the tax sale certificate

holder to ensure the correctness of the calculation. Miller also testified that

she devised a procedure to advise nonresponsive lienholders in writing that she

would “assume” the correctness of her calculation of the redemption amount

unless they objected.

In the realm of municipal government, the tax collector is the final word

on issues of tax redemption. That the tax collector is subject to regulations

promulgated by the Department of Community Affairs does not make the tax

collector any less a final policymaker than the mayor, who is subject to that

Department’s regulations, e.g., N.J.A.C. 5:30-13.11(e), or a chief of police,

who is subject to rules promulgated by the Attorney General, see O’Shea v.

Township of West Milford, 410 N.J. Super. 371, 383 (App. Div. 2009)

35 (“[Attorney General] guidelines, directives or policies cannot be ignored . . . :

they are binding and enforceable on local law enforcement agencies . . . .”).

Because Miller spoke as a final policymaker for the Borough on matters

of redemption, Miller’s policy was the Borough’s policy. On that basis, the

Borough may be held liable for Miller’s violation of the Tax Sale Law under

the CRA or for a violation of an applicable federal constitutional right under

§ 1983. See Besler, 201 N.J. at 565-66.

VII.

We affirm that part of the judgment of the Appellate Division holding

that Miller was not entitled to qualified immunity, and we reverse that part of

the judgment of the Appellate Division holding that the Borough could not be

found liable under the CRA or § 1983 for the conduct of its tax collector.

We remand to the trial court for proceedings consistent with this

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE ALBIN’s opinion.