It is often difficult to thread the needle of the qualified immunity defense, which requires that a public official not only violate the law but do so by conduct “objectively unreasonable” in light of clearly established law. Our Supreme Court’s decision in Winberry Real Estate Assocs. v. Boro of Rutherford, while not breaking new ground, shows just how narrow the eye of the needle is.
Plaintiff was a family entity that owned a house for a handicapped relative. After it failed to pay property taxes, the town sold the tax sale certificate to a private buyer. Four years later, the certificate owner foreclosed. In accord with existing statute law, the draft judgment gave the property owner the right to redeem at any time until midnight of the day of entry, upon paying the taxes due with interest and costs. Awakened from inaction, the property owner called the tax collector to request the payoff figure, only to be told that the tax collector was “too busy” to calculate the interest due. It ultimately emerged that the collector’s computer could have done that in a few minutes but that the collector had an unwritten, non-statutory policy of only accepting written requests to redeem. When the owner tendered an estimated payment above the actual amount, the collector said she had no authority to accept its check. The property was sold in foreclosure, which the owner was only able to vacate, and redeem the property, after expensive litigation.