Only the Supreme Court, Not a Lower Court, Can Recognize a New Cause of Action

Filgueiras v. Newark Public Schools, 426 N.J. Super. 449 (App. Div. 2012). This case arose out of the allegedly improper termination of a gym teacher by Newark Public Schools. [Disclosure: My firm, Lite DePalma Greenberg, LLC, represents Newark Public Schools, but did not do so in this case]. In an opinion by Judge Messano, the Appellate Division reversed a jury verdict that had awarded plaintiff damages for a violation of substantive due process under the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2 (“CRA”).

Plaintiff’s claim had been based on the theory that he had a protected liberty interest in his reputation that defendants had violated. Judge Messano noted that “[a]s a general matter, one does not have a federal constitutionally protected liberty interest in his reputation.” Plaintiff, however, asserted that “our state constitution affords more expansive substantive due process protections for reputational liberty interests.” But Judge Messano observed that “the only precedent cited by plaintiff recognizes that one’s right to be free of arbitrary and abusive governmental damage to his reputation is protected only by procedural due process guarantees,” not substantive due process.

Plaintiff thus asked the Appellate Division to take the next step, and to “recognize a liberty interest in one’s reputation that is embedded in our constitution and subject to protection as a substantive due process right under the CRA.” This the panel would not do. Judge Messano stated that it was “inappropriate for us, as a court of intermediate jurisdiction, to recognize a cause of action, particularly one of constitutional dimension, heretofore never recognized under existing jurisprudence from our Supreme Court.”

This is a well-established principle that dates back many years, to such cases as Namm v. Charles E. Frosst & Co., 178 N.J. Super. 19, 35 (App. Div. 1981). The Appellate Division rightly refused to recognize a new, constitutionally-based cause of action. Only the Supreme Court has the power to do that, assuming that such a new cause of action were otherwise warranted.