1

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.
2

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 
3

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.

---
1

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

January 19, 2021

Decided

June 28, 2021

Lawrence S. Lustberg argued the cause for 

appellants/cross-respondents (Gibbons and Lite DePalma 

Greenberg, attorneys; Lawrence S. Lustberg, SylviaRebecca Gutiérrez, and Bruce D. Greenberg, on the 

briefs).

Kathy A. Kennedy argued the cause for 

respondents/cross-appellants (Hanrahan Pack, attorneys; 
2

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 this 

case.
3

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 
4

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
5

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.
6

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 . . . .”).
7

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 
8

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 NonRedemption 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.
9

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 
10

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.
11

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.
12

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.
13

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.
14

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 
15

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).
16

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.

A.

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 
17

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.

B.

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 
18

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 
19

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 
20

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.

V.

A.

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 

defendants.

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 
21

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.
22

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 
23

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 
24

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 
25

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 
26

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?

D.

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. 
27

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 
28

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 
29

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.
30

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.

A.

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 crosspetition 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.
31

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 
32

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-
33

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).

B.

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 
34

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).
35

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) 
36

(“[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 

opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, 

FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE 

ALBIN’s opinion.