ERNEST COURSEY v. CITY OF ATLANTIC CITY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ERNEST COURSEY,

Plaintiff-Appellant,

v.

CITY OF ATLANTIC CITY;

ROBERT LEVY; DOMENIC CAPPELLA;

CRAIG CALLAWAY;1 and ATLANTIC

CITY SUPERVISORS' ASSOCIATION

LOCAL 1 AFFILIATE R.W.D.S.U.

LOCAL 108 AFL-CIO PUBLIC SECTOR

DIVISION UNION, individually,

jointly and severally,

Defendants-Respondents.

________________________________

October 21, 2013

 

Argued October 1, 2013 - Decided

 

Before Judges Messano, Sabatino, and Rothstadt.

 

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3689-07.

 

George L. Farmer argued the cause for appellant.

 

Steven S. Glickman argued the cause for respondents City of Atlantic City and Domenic Cappella (Ruderman & Glickman, P.C., attorneys; Mr. Glickman, of counsel; Vincent M. Avery, on the brief).

 

Brian D. Heun argued the cause for respondent Robert Levy (Ridgway & Ridgway, attorneys; Mr. Heun, on the brief).

 

Tuohy & Tuohy, attorneys for respondent Craig Callaway, join in the brief of respondent City of Atlantic City.

 

Respondent Atlantic City Supervisors' Association-Local 1 Affiliate R.W.D.S.U. Local 108 AFL-CIO Public Sector Division Union has not filed a brief.

PER CURIAM

Plaintiff Ernest Coursey is a former Councilman and long-time municipal employee in Atlantic City (the "City"). He was discharged from his City employment in January 2006 after a new mayor took office following an election. Alleging improper political retaliation, Coursey filed this civil action in the Law Division in 2007 against the City, various City officials, and his labor union, contesting his discharge on a variety of constitutional and common-law grounds.

At the behest of the City, the trial court transferred this dispute, pursuant to Rule 1:13-4(a), to the Civil Service Commission (the "Commission") under the doctrine of primary jurisdiction. The Commission denied Coursey relief under the civil service laws, except that it directed the City to place him prospectively on a special reemployment list. The Commission did not address Coursey's claims of political retaliation or the alleged violation of his constitutional and common-law rights. Coursey then requested the trial court to reopen his lawsuit, which it declined to do in a series of orders that he now appeals.

For the reasons that follow, we reverse the trial court's orders denying reinstatement of Coursey's lawsuit. We remand this case to the Law Division for a merits disposition of his numerous claims that are not based on the civil service laws. We also reinstate the individual defendants, whom the court improvidently dismissed with prejudice from this case at the time of the Rule 1:13-4(a) transfer.

I.

We recite pertinent facts from the present record, with a caveat that certain factual contentions are hotly disputed and have yet to be adjudicated as to their merits. In addition, we need not present the entire complicated procedural history of this litigation, but only canvass those aspects that are germane to our analysis of the issues before us.2

 

A.

In 1986, the City hired Coursey as a clerk typist, a classified position. His position became permanent five years later in 1991. Later that same year, Coursey took a leave of absence to serve on the Atlantic City Council (the "City Council"). He submitted periodic leave of absence forms to secure his permanent clerk typist position through 1993, but apparently not thereafter.

Coursey served on the City Council until 2002, at which time the newly-elected mayor, Lorenzo Langford, appointed him as his confidential aide. Coursey believed his appointment upset defendant Craig Callaway, also a Langford supporter, because Callaway apparently thought he instead deserved the confidential aide position.

In July 2004, Coursey's title changed to confidential secretary. Thereafter, in August 2005, Coursey was provisionally appointed as a demolition coordinator in the City's neighborhood services department. Coursey changed positions again in September 2005, this time to an unclassified liaison for neighborhood services.

Callaway was initially Langford's opponent in the 2005 election for City mayor. In the months leading up to the election, however, defendant Robert Levy replaced Callaway on the ballot as Langford's main opponent. Levy won the election.

Mayor Levy was sworn into office on January 1, 2006. That same day, defendant Domenic Cappella was sworn in as the City's business administrator.

Meanwhile, in December 2005, Coursey had resumed his former position as a provisional demolition coordinator. At the time, he reported to the City's then-current business administrator, Ben Fitzgerald. In a letter dated that same month, the City's personnel director, Benay George, informed Coursey that Coursey did not have job security in his extant provisional appointment and would be returned to his permanent job title on January 3, 2006.

On January 3, 2006, Cappella directed Coursey to report to the personnel office to complete a typing test as a precondition for resuming his clerk typist position. Coursey did not take the test because he admittedly could not type proficiently. Later that day, Coursey met with Cappella, George, and Kimberly Baldwin, the City Solicitor, to discuss his employment. Coursey informed the group that he could not type at the designated speed, and also noted that he was not previously required to complete such a test when he was originally hired in 1986.

After reviewing Coursey's file, Baldwin discovered that Coursey had not completed a leave of absence form since 1993, which indicated to her that his permanent civil service status had lapsed. Consequently, Baldwin informed Cappella that although Cappella could appoint Coursey to any position he wished, he was not obliged to appoint Coursey to his former clerk typist position.

Cappella told Coursey to return to his office until his position with the City could be determined. According to Coursey, he replied that he wanted to be fired if that was Cappella's intention. Cappella then terminated Coursey on the spot, later notating that Coursey "had no legal protection to his continued employment."

At the time of his termination, Coursey belonged to a labor union, the Atlantic City Supervisors' Association, Local 108 R.W.D.S.U. Public Employees' Division, U.F.C.W. AFL-CIO3 (the "Union"). In a letter dated January 16, 2006, Coursey informed Levy that he was "formally grieving" his alleged unlawful termination and sought "all of [his] administrative remedies," including a "formal [h]earing." Coursey's letter was forwarded to the Union. By letter dated January 31, 2006, the Union requested that Coursey contact the Civil Service Commission to receive, in writing, his last certified permanent classification. Coursey did not do so, although he eventually presented his civil service claims to the Commission in 2009 after the trial court transferred his lawsuit to that administrative agency. See Part I.C., infra; see also Coursey, supra, No. A-3411-11.

B.

In November 2007, Coursey filed a complaint in the Law Division against the City, Levy, Cappella, Callaway, and the Union. In his complaint, Coursey alleged: (1) the City and the individual defendants violated his substantive due process rights under the Fifth and Fourteenth Amendments of the United States Constitution by knowingly making "false accusations" and by failing "to assure that [his] termination and appeal rights . . . conform[ed] to the minimum rules of conduct" (counts one and two); (2) the City and the individual defendants violated his equal protection rights under the Fifth and Fourteenth Amendments of the United States Constitution by terminating him because of his race (African-American) (count three); (3) the City and the individual defendants violated his right to free speech under the First and Fourteenth Amendments of the United States Constitution by terminating him because of his political affiliation (count four); (4) the City and the individual defendants violated his corresponding due process and free speech rights under the New Jersey Constitution (count five); (5) the City and the individual defendants "wrongly executed their duties" by unlawfully terminating him and failing to provide "access to his due process rights" (count six); (6) the City and the individual defendants wrongfully terminated him (count seven); (7) the City and the individual defendants acted "willfully, purposefully, and maliciously with the intent [to] inflict[] harm upon" him (count eight); (8) the Union negligently breached both its duty to him and the terms of the collective bargaining contract by failing to pursue his grievance based on his political affiliation with, and support of, Mayor Langford (counts nine and ten); (9) the City's and Levy's failure to properly train Cappella so that he "would conform to the minimum rules of conduct" produced Coursey's wrongful termination (count eleven): (10) the defendants tortiously interfered with his right to employment (count twelve); and (11) defendants caused him to suffer emotional distress (count thirteen).

By way of relief, Coursey's complaint demanded compensatory and punitive damages, counsel fees, and "any other relief deemed equitable and just." It is unclear from the complaint whether Coursey specifically sought to be reinstated to his employment with the City, although such a reinstatement request became an element of Coursey's later administrative case before the Commission.

The City, the individual defendants (some of whom were represented by separate counsel), and the Union all denied liability to Coursey or engaging in any improper conduct. The parties then conducted several depositions and other discovery, although it was represented to us at oral argument that the discovery has not been fully completed.

C.

During the spring of 2009, the City moved to transfer the case to the Commission pursuant to Rule 1:13-4(a), based on an alleged lack of subject matter jurisdiction in the trial court and Coursey's alleged failure to exhaust administrative remedies with the Commission. The individual defendants joined in the City's application; Levy and Cappella additionally moved for dismissal of the claims asserted against them.4 The Union took no position on the City's motion. Meanwhile, Coursey moved for summary judgment on liability.

By written opinion and an accompanying order dated July 22, 2009,5 the motion judge granted the City's request and transferred jurisdiction to the Commission, ruling that Coursey had failed to exhaust his administrative remedies, and that the Commission had primary jurisdiction to determine whether he had been terminated in violation of the civil service laws. Neither the court's written opinion nor the companion orders stated that the Law Division retained jurisdiction during the pendency of the Commission proceedings.

Additionally, in three subsequent orders (two dated July 22, 2009, and one dated August 7, 2009), the trial court dismissed all claims against the individual defendants with prejudice. By separate order, also dated July 22, 2009, the court denied Coursey's summary judgment motion as "moot," based on its order transferring jurisdiction to the Commission. The court made no disposition of Coursey's claims against the Union.

Coursey moved for reconsideration of the court's orders transferring jurisdiction to the Commission and dismissing his claims against the individual defendants. Coursey further requested the trial court to retain exclusive jurisdiction over his non-civil service claims. By order dated August 28, 2009, the court denied Coursey's application.6

After jurisdiction was transferred to the Commission, it issued a final administrative determination dated February 3, 2011, which found that: (1) Coursey's appeal of his termination was untimely; (2) even if it had been timely, Coursey's termination from the demolition coordinator position was not improper under civil service law because he was a provisional (rather than a permanent) employee; (3) Coursey was entitled to placement on a "special reemployment list" since he had attained permanent civil service status as a clerk typist, but inclusion on that list only applied to prospective employment opportunities due to his untimely administrative appeal; and (4) Coursey was entitled to payment for earned vacation time, but not back pay or counsel fees. In addition, the Commission ruled that it lacked jurisdiction to decide Coursey's contract claims against the Union. The Commission also declined to resolve whether Coursey was owed monies for his unused sick and administrative time.

Coursey moved before the Commission for reconsideration of its initial decision. The Commission denied that request, in a second written decision dated January 12, 2002.

D.

After the Commission's final agency decision, Coursey moved to reinstate his complaint in the Law Division, to vacate the orders that dismissed the individual defendants, and for partial summary judgment. By written opinion and order dated March 18, 2011, the trial court denied Coursey's application.

Thereafter, in April 2011, Coursey moved7 for reconsideration, the recusal of the motion judge, and a change in venue. In a written opinion and order dated May 13, 2011, the court denied Coursey's motion with respect to reconsideration and venue. However, the motion judge did recuse himself from further involvement in the case and transferred the matter to the vicinage's assignment judge.8

In a letter dated May 19, 2011, Coursey requested the assignment judge to vacate all of the motion judge's prior orders and adjudicate all claims against all parties. In an attempt to clarify what had previously transpired procedurally, the motion judge issued a letter on May 24, 2011, stating that the four orders in 2009 dismissing the individual defendants and transferring jurisdiction to the Commission had "resulted in dismissal of the entirety of [p]laintiff's claims." The motion judge's letter further explained:

Summary Judgment9 was granted as to the Complaints against the three individual defendants. As to the claim against the City, that was dismissed10 and transferred to Civil Service. As noted in the undersigned's Memorandum of Decision dated July 22, 2009, "When all is said and done, what, if any, rights Plaintiff possesses turn on his Civil Service status." Given [p]laintiff's counsel's concession that his client had no rights under the LAD or the CEPA and, further, given dismissal of the claims arising out of acts purportedly attributable to the three individual Defendants, there was nothing left for which the City could be answerable other than [p]laintiff's employment rights as a former clerk/typist.

 

On May 25, 2011, the assignment judge denied Coursey's motion to vacate all of the trial court's prior orders, indicating that Coursey's only recourse was to file an appeal.

Thereafter, in June 2011, Coursey filed a notice of appeal (No. A-4961-10), seeking review of the court's orders dated July 22 and August 28, 2009, and March 18, May 13, and May 25, 2011. Coursey also filed a separate appeal (No. A-3411-11) of the Commission's final administrative action.

Attempting to further clarify the record, Coursey's attorney submitted a supplemental certification to the trial court on June 25, 2011, stating that he previously sent a letter to the motion judge dated August 12, 2009. The letter stated that "if it is the [c]ourt's ruling to dismiss the [p]laintiff's entire Complaint against all parties and with respect to all claims, [p]laintiff respectfully requests the [c]ourt to so identify in its Decision/Order and mark the Order 'Final' for appellate purposes."

In a responsive letter dated June 29, 2011, the motion judge advised that he had never received the August 12, 2009 letter from Coursey's counsel. The judge's letter further stated:

The undersigned is of the opinion that there are no justiciable issues remaining before the [c]ourt. The individual defendants were dismissed and the claim against the City was transferred to the Department of Personnel.11 Plaintiff's counsel conceded that his client had no claim under either the LAD or the CEPA. No appeal was taken from the Summary Judgment12 motions in the Trial Court. No appeal was taken from the Department of Personnel ruling.13

 

If one thinks of [p]laintiff's original claim as a garment of clothing, then all that can possibly remain before the Court are random buttons and threads. The undersigned continues to be of the opinion that there are no justiciable issues before the [t]rial [c]ourt and because the appeal period expired long ago, [p]laintiff has no claims of merit to be considered by the Appellate Division.

While the present appeal was pending, Coursey's attorney again sought to vacate all of the motion judge's prior orders, this time based on that judge's acknowledgment that he had not received counsel's August 12, 2009 letter. By written opinion and order dated August 22, 2011, a different judge in the vicinage denied that motion, finding that the August 28, 2009 order denying Coursey's reconsideration motion was final, "regardless of whether it was explicitly marked 'Final.'"

II.

The essence of Coursey's position in this appeal is that he was deprived of a reasoned adjudication in the Law Division of his constitutional and common-law claims. He further argues that the trial court's Rule 1:13-4(a) transfer of the matter to the Commission, which only adjudicated Coursey's rights under the civil service laws, should not extinguish his opportunity to litigate his non-civil service claims.

For the reasons that follow, we agree with Coursey that he is entitled to a disposition of his non-civil service claims on their merits, and that this case must be remanded to the Law Division for that purpose. We further hold that the trial court's dismissal with prejudice of the individual defendants was, at best, premature, and should be reconsidered on remand. Lastly, Coursey's claims against the Union, which were never specifically addressed in any order or analyzed in any of the trial court's opinions, must be decided on their merits in that forum as well.

A.

Rule 1:13-4(a) provides that:

Subject to the right to be prosecuted by indictment, if any court is without jurisdiction of the subject matter of an action or issue therein or if there has been an inability to serve a party without whom the action cannot proceed as provided by R. 4:28-1, it shall, on motion or on its own initiative, order the action, with the record and all papers on file, transferred to the proper court, or administrative agency, if any, in the State. The action shall then be proceeded upon as if it had been originally commenced in that court or agency.

 

The purpose of this Court Rule is "to avoid dismissal of [an] action on jurisdictional grounds" where a case has been filed in a court when it instead should have been filed in another court or an administrative agency. Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 1:13-4 (2014); see, e.g., Glynn v. Park Tower Apartments, Inc., 213 N.J. Super. 357, 363 (App. Div. 1986) (recognizing that "a case over which an agency has jurisdiction which has been filed with a court ordinarily should be transferred to the agency" under Rule 1:13-4(a)).

At times, the transfer of certain regulatory matters relevant to a dispute in a civil action, even if the trial court has subject matter jurisdiction over other aspects of that civil case, should be transferred to an administrative agency under concepts of primary jurisdiction. The doctrine of primary jurisdiction, and the related doctrine requiring litigants to first exhaust their administrative remedies, advances several objectives. First, these principles "ensure[] that claims will be heard, as a preliminary matter, by [an administrative] body possessing expertise in the area." City of Atl. City v. Laezza, 80 N.J. 255, 265 (1979). Second, these principles "allow[] the parties to create a factual record [within an agency] necessary for meaningful appellate review." Ibid. Third, the agency's final decision "may satisfy the parties and thus obviate resort to the courts." Ibid.; see also Hawk v. N.J. Inst. of Tech., 428 N.J. Super. 562, 570 (App. Div. 2012) (reiterating these objectives).

Nevertheless, as the Supreme Court has also instructed, the application of these principles for steering certain matters to an administrative agency are "not an absolute." Garrow v. Elizabeth Gen. Hosp. & Dispensary, 79 N.J. 549, 561 (1979). For example, our courts have recognized exceptions when only a question of law needs to be resolved, where administrative remedies would be futile, when irreparable harm would result, when the agency's jurisdiction is doubtful, or when an overriding public interest demands prompt judicial decision. Ibid. (internal citations omitted); see also Abbott v. Burke, 100 N.J. 269, 298 (1985) (reaffirming these exceptions); Hawk, supra, 428 N.J. Super. at 571.

The motion judge properly applied these principles in transferring the civil service aspects of this matter to the Commission. Although Coursey's complaint in the Law Division did not specifically plead violations of the civil service laws, his allegations of wrongful discharge from his classified employment with the City clearly and logically implicated civil service concepts. The Legislature has vested the Commission with jurisdiction over such civil service issues. See N.J.S.A. 11A:2-1 (creating the Commission); N.J.S.A. 11A:2-6 (empowering the Commission to, among other things, render final administrative decisions on matters concerning the removal of classified employees, adopt and enforce administrative rules that carry out the civil service statutes, and interpret the application of the civil service statutes to any public body or entity); see also Thurber v. City of Burlington, 191 N.J. 487, 500-01 (2007) (recognizing the important role of the Commission's predecessor agency, the Merit System Board, in the application of the civil service statutes and regulations).

The motion judge correctly recognized that Coursey's civil action had a substantial nexus to civil service concepts, such as, for example, whether Coursey's position as to demolition coordinator was provisional or permanent, whether Coursey continued to have civil service protection in the permanent title of clerk typist, and other related subjects. Those civil service classifications and issues would be relevant to Coursey's constitutional and common-law claims, for example, in defining whether he was an at-will City employee at the time of his discharge or, conversely a permanent employee protected from such removal. His actual civil service status undoubtedly affects the strength and nature of his alleged underlying rights to a continued expectation of employment with the City.

Although we recognize that even at-will governmental employees have a degree of constitutional and common-law protection from improper discharge, the motion judge logically perceived that the Commission should exercise its primary jurisdiction to determine the status of Coursey's rights within the civil service system. See, e.g., Nicoletta v. N. Jersey Dist. Water Supply Comm'n, 77 N.J. 145 (1978) (holding that an at-will public employee, not in the classified civil service, was entitled to a due process hearing concerning his removal because, under the then-extant civil service regulations, removal exposed him to potential disqualification from further employment); Bello v. Lyndhurst Bd. of Educ., 344 N.J. Super. 187, 193 (App. Div. 2001) (noting First Amendment limitations that prohibit public agencies from discharging non-policymaking and non-advisory employees based on the employee's political affiliation (citing Elrod v. Burns, 427 U.S. 347, 372-73, 96 S. Ct. 2673, 2689-90, 49 L. Ed. 2d 547, 565 (1976) and Stephens v. Kerrigan, 122 F.3d 171, 176 (3d Cir. 1997))). We therefore concur with the trial court's transfer of the civil service questions implicated in this litigation to the Commission.

The difficulty presented here, however, is that there are numerous other aspects of Coursey's civil action that were not appropriate for the Commission to adjudicate. For example, although the Commission was authorized to resolve whether Coursey was entitled to special reemployment rights that would have prohibited his termination, N.J.S.A. 11A:6-14 and N.J.A.C. 4A:6-1.17(a)(1), the Commission was not authorized to resolve his constitutional, contractual, tort, and common-law claims, N.J.S.A. 11A:2-6, as these claims required the development of a fuller record and fact-finding in the Superior Court. See, e.g., Maisonet v. N.J. Dep't of Human Servs., 140 N.J. 214, 227 (1995) (noting that "federal claims arising out of decisions rendered by [S]tate and local administrative agencies ordinarily will be heard in the Law Division"); McKeeby v. Arthur, 7 N.J. 174, 181 (1951) (noting that an action for damages on breach of contract is "a subject matter fully within the jurisdiction of the Superior Court"); Rinaldo v. RLR Inv., LLC, 387 N.J. Super. 387, 400 (App. Div. 2006) (noting that tort claims "are the type of claims that would have to be heard in a trial court even if they were asserted against a state agency"). Moreover, unlike a court that "can consider all judicial remedies," the Commission had no authority to grant Coursey a complete damages award, if he had established the merits of his claims, because it is only authorized to award back pay, seniority, benefits, and counsel fees. Muise v. GPU, Inc., 332 N.J. Super. 140, 163 (App. Div. 2000); see also N.J.S.A. 11A:2-22; N.J.A.C. 4A:2-1.5(b).

Rule 1:13-4 is unfortunately silent on the question of whether the trial court should resume jurisdiction over a matter transferred under the Rule to an administrative agency, if the agency's ruling on the regulatory issues in the matter does not resolve the other legal and factual issues outside of its province. Despite that silence, the Rule must be logically construed to accommodate such post-transfer reinstatement of a civil action in the trial court if an agency's disposition leaves open issues that have yet to be adjudicated.

Our system of justice strongly favors the disposition of civil disputes on their merits. Indeed, our court rules have been designed from their inception in an effort to assure that "just dispositions on the merits may be facilitated and determinations on the basis of procedural niceties may be avoided." Handelman v. Handelman, 17 N.J. 1, 11 (1954); see also Ragusa v. Lau, 119 N.J. 276, 283-84 (1990). We thus interpret the transfer mechanism in Rule 1:13-4 in a manner that enables unresolved issues and claims to be revived for the trial court's consideration on the merits where, as here, the administrative agency with primary jurisdiction has not decided those distinct matters itself. Consequently here, the court's 2011 orders denying reinstatement were erroneous.

Our conclusion that the trial court erred in declining to reopen Coursey's civil case is not inconsistent with Melani v. County of Passaic, 345 N.J. Super. 579 (App. Div. 2001), an opinion that the trial court cited in one of its written statement of reasons. In Melani, a County employee brought a wrongful discharge action in the Law Division alleging that the County was equitably estopped from treating her under the civil service laws as a provisional employee rather than a permanent employee. Id. at 582. Invoking principles of primary jurisdiction, the County moved several times before the trial court to transfer the dispute to the Department of Personnel. Ibid. The trial court denied the transfer motions. Ibid. After a bench trial, the judge concluded that the County had improperly terminated the employee, and therefore ordered her immediate reinstatement, back pay, and other remedies. Ibid. On appeal, we vacated the trial court's decision and directed that the dispute be transferred to the Department of Personnel, in light of the agency's authority and expertise over issues arising under the Civil Service Act. Id. at 590-91.

Although Melani certainly reinforces the propriety of the Rule 1:13-4 transfer order in the present case, it does not address the specific question now before us of whether the trial court's jurisdiction over non-civil service issues should be revived after the agency completes its disposition of the civil service issues. Melani does not identify any constitutional or other common-law claims that were pleaded by the employee. Consequently, Melani is not incongruous with our present decision addressing the proper aftermath of a civil action once it has been transferred to an administrative agency, when that agency resolved only some, but not all, of the questions of law and fact that were raised in the civil action.

Now having the benefit of a plenary briefing and oral argument on both this appeal as well as Coursey's related appeal of the Commission's decisions, we discern no procedural bar stemming from Coursey's failure to pursue appellate relief before this court back in 2009, at the time when the matter was transferred to the Commission. As it turned out, the motion judge did not receive the August 12, 2009 letter from Coursey's counsel seeking clarification as to whether the court was deeming the transfer orders (and the related orders dismissing the individual defendants) to be final.

Even if the 2009 transfer orders had been explicitly marked "final," they would not have resolved the civil action as to all issues and all parties, as none of the orders resolved the claims pleaded against the Union, a co-defendant. See Smith v. Jersey Cent. Power & Light Co., 421 N.J. Super. 374, 383-84 (App. Div.), certif. denied, 209 N.J. 96 (2011) (specifying that, subject to certain enumerated exceptions not applicable here, a trial court's disposition is not final for purposes of appellate review unless it disposes of all issues as to all parties); see also Yuhas v. Mudge, 129 N.J. Super. 207, 209 (App. Div. 1974). Leave to appeal, if it had been sought in 2009, would only have been discretionary. See R. 2:5-6.

At the very least, we are satisfied that there was confusion about the finality and appealability of the trial court's 2009 orders, confusion which justifies our consideration of Coursey's argument that he never "had his day in court" on his non-civil service claims. The confusion is further illustrated by the fact that the City, which the motion judge described in his May 24, 2011 letter as having been "dismissed" in 2009 at the time of the Rule 1:13-4(a) transfer, nevertheless moved for summary judgment in 2011 after the Commission had completed its review. We therefore treat Coursey's appeal of the various orders issued in 2011 when the trial court declined to reinstate his unadjudicated claims as a timely effort to contest the trial court's overall handling of the jurisdictional issues.14

We should emphasize that in remanding this civil action for consideration of the substance of Coursey's non-civil service claims, we express no views on whether those claims have any merit or whether any of them warrant a jury trial under the Brill15 standards for summary judgment. All we decide here is a procedural point: because the Commission's disposition of the civil service claims did not explicitly resolve this case in its entirety, and because the Brill summary judgment standards were not discussed in any of the orders or letter opinions contained in the appellate record, the remaining aspects of this matter must be reopened in the Law Division.16 To that end, we direct the trial court to conduct a case management conference within thirty days to plan with counsel any additional discovery that may be appropriate, and also to schedule any dispositive motions that any party wishes to file after any such discovery has been completed.

B.

We briefly turn to Coursey's appeal of the provisions in the court's 2009 orders that dismissed the individual defendants (i.e., Levy, Cappella, and Callaway) with prejudice. The record supplied to us does not indicate that any of those individual defendants ever moved for summary judgment in 2009. Apparently, the only summary judgment motion filed in 2009 was by Coursey himself, an application the trial court denied as "moot." The record does show that counsel for Cappella and Levy did request, as a part of their motions for transfer under Rule 1:13-4(a), that they be dismissed individually from the case. We have not been furnished with any written statement of reasons from 2009 that specifically explains why the court dismissed the individual defendants, nor with any transcripts of any oral argument from 2009 when the orders were entered.17 At oral argument on the appeal, counsel for the City, Cappella, and Levy could not identify any portion of the appellate record in which the trial court had applied the Brill standards for summary judgment.

Consequently, on the record supplied to us, it appears that the motion judge dismissed the individual defendants on a premise that the issues presented in Coursey's case arose so fundamentally under the civil service laws that the City officials who Coursey chose to name as co-defendants could not have had any personal liability to him because the City was Coursey's sole employer. Such a conclusive premise, however, overlooks the conceptual possibility that Coursey might still have viable causes of action under certain constitutional and common-law principles independent of the civil service laws.18

We therefore conclude that it was improvident for the trial court to dismiss, with prejudice, Coursey's claims against the individual defendants as a component of its decision to transfer the matter to the Commission. The individual defendants must be reinstated, subject to the completion of discovery and, if appropriate, dispositive motion practice in which the Brill standard is applied.

C.

In light of our disposition restoring Coursey's non-civil service claims in the Law Division, we need not address Coursey's argument that the motion judge's 2009 orders were per se invalidated by the judge's ultimate decision to recuse himself in 2011. All other issues Coursey has raised on appeal, including his claim that the trial court improperly denied his motion for a change of venue, lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Vacated in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

1 Improperly designated as Craig Calloway in various documents in the record.

2 Portions of the facts and procedural history are separately included in this court's companion opinion issued today, In the Matter of Ernest Coursey, Jr., No. A-3411-11 (App. Div. 2013), a civil service appeal that was argued back-to-back with the instant Law Division appeal.

3 The Union has not participated in this appeal.

4 Callaway apparently did not file his own motion for dismissal, but his counsel eventually submitted a proposed order requesting that he, like Levy and Cappella, also be dismissed individually.

5 A transcript of any oral argument on these motions was not furnished to us as part of the appellate record.

6 Neither a transcript of any oral argument nor a written statement of reasons associated with this order is contained within the appellate record.

7 The City, meanwhile, moved for summary judgment, arguing that the Commission's determination of Coursey's provisional status eliminated all of his claims against the City as a matter of law. The record furnished to us does not contain any order specifically granting summary judgment to the City, nor any transcript of any oral argument on that motion.

8 The assignment judge has since retired.

9 The reference to summary judgment is apparently mistaken, as no individual defendant evidently moved for summary judgment.

10 The letter does not refer to the City's post-Commission motion for summary judgment it filed in March 2011.

11 The Department of Personnel is the administrative agency that organizationally included the Merit System Board, the predecessor to the Commission. In 2008, the Department of Personnel was abolished, however, and the Civil Service Commission adopted the rulemaking and quasi-judicial functions of the previous Merit System Board. N.J.S.A. 11A:11-2.

12 Again, the reference to summary judgment appears to have been mistaken.

13 Coursey did appeal the Commission's decision after the Commission denied his motion for reconsideration in February 2012.

14 To the extent that this court's earlier orders issued in this appeal before this panel's plenary consideration limited the scope of our appellate review, we now supersede those interlocutory orders.

15 See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

16 We decline to exercise original appellate jurisdiction under Rule 2:10-5 over those unresolved issues. See State v. Miceli, 215 N.J. 284, 293-94 (2013) (reiterating the policy to exercise original appellate jurisdiction sparingly, and reversing this court in exercising such jurisdiction in that case).

17 The orders do not recite that they were issued for reasons stated on the record orally in open court, but instead refer only to the court's written statement of reasons.

18 The City submitted a post-argument supplemental letter-brief to us contending that a provisional civil service employee has no protected property interest in his or her employment that entitles such an employee to due process before termination, citing Thomas v. Town of Hammonton, 351 F.3d 108 (3d Cir. 2003) and Battaglia v. Union Cnty. Welfare Bd., 88 N.J. 48 (1981). However, its argument overlooks the fact that Coursey has invoked other constitutional arguments in this case, including allegations of violations of the First Amendment, the Equal Protection Clause, and the New Jersey Constitution. Rather than address and resolve the merits of any of these constitutional issues on the present record, they should be fully addressed in the first instance in the trial court after dispositive motion practice and the issuance of an adequate statement of reasons for potential appellate review. Coursey's common-law claims similarly need to be addressed on their merits.