Certified immunity is a excessive bar

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It is often difficult to thread the needle of skilled immunity defense that requires a public official not only to break the law, but to do so through conduct that is “objectively unreasonable” in the face of clearly established laws. Our Supreme Court decision in Winberry Real Estate Assocs. v. Boro of Rutherford, without breaking new ground, shows how narrow the eye of the needle is.

The plaintiff was a family business that owned a home for a disabled relative. After failing to pay property tax, the city sold the tax certificate to a private buyer. Four years later, the certificate holder forced foreclosure. The draft ruling granted the property owner the right under current statutory law to buy back the property at any time until midnight on the day of entry against payment of the taxes due, including interest and costs. Awakened from inaction, the property owner called the tax collector to request the payout figure, only to learn that the tax collector was “too busy” to calculate the interest due. It eventually found that the collector’s computer could have done this in minutes, but the collector had an unwritten, non-legal policy to only accept written requests for redemption. When the owner offered an estimated payment in excess of the actual amount, the collector said she was not eligible to accept the check. The property was sold in foreclosure that the owner could only evacuate and buy back after an expensive legal battle.