Sovereign Immunity Prevails, But the State Police Still Lose

Royster v. New Jersey State Police, 227 N.J. 482 (2017).  Today’s decision is a unique one.  Writing for the majority of five Justices (Justices LaVecchia, Patterson, Fernandez-Vina, Solomon, and Timpone), Justice Solomon affirmed the decision of the Appellate Division that the New Jersey State Police could properly assert the doctrine of sovereign immunity for the first time in a seven-year litigation in a post-trial motion for judgment.  The jury had awarded plaintiff $500,000 on his claim under the Americans With Disabilities Act, 42 U.S.C. §12101 to 12113 (“ADA”).

The trial court ruled that the State Police were estopped from asserting sovereign immunity at that late date.  The Appellate Division reversed, ruling that sovereign immunity was always available.  The  Supreme Court granted review, and the majority agreed with the Appellate Division about sovereign immunity.  Justice Albin, joined by Chief Justice Rabner, dissented on that issue.  But the plaintiff still ended up with a unanimous Supreme Court awarding him $500,000.  How did that happen?

Plaintiff had asserted a web of claims under the ADA, the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (“LAD”), and the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14 (“CEPA”) against the State Police and other defendants.  All the claims proceeded from his ulcerative colitis.  The trial court dismissed the claims against all defendants other than the State Police on summary judgment.  At trial, the court dismissed the LAD claims as being barred by CEPA’s waiver provision.  The jury deliberated on an ADA failure to accommodate claim and a CEPA claim, and ruled for plaintiff, awarding him $500,000 on the ADA claim.  The appeal process then began, culminating in today’s Supreme Court decision.

Justice Solomon applied the de novo standard of review to the purely legal issue of sovereign immunity.  After reviewing the background of sovereign immunity, he confronted plaintiff’s argument against its applicability here.  There was no dispute that the State Police is an arm of the State that could invoke sovereign immunity.  The Legislature had the ability to waive, by statute, sovereign immunity for claims under the ADA.  But the Legislature did not do that, and in the absence of such a “clear and unequivocal expression of consent to be sued under the ADA,” sovereign immunity applied.

The State Police’s litigation conduct did not waive the immunity either.  The State Police merely defended the case that was brought.  It never affirmatively invoked the court’s jurisdiction, an act that could have constituted a bar to sovereign immunity.

Justice Solomon also rejected the idea that an estoppel barred the assertion of sovereign immunity.  Estoppel is “rarely invoked against a governmental entity,” and in any event it requires a misrepresentation of material fact.  No such misrepresentation was made here.  Plaintiff was aware that the State Police is an arm of the State, and the State Police did not waive immunity “by simply defending the claims against it.”

But the Court then rescued plaintiff by finding that his LAD claims were wrongly dismissed.  The LAD contains an express waiver of sovereign immunity, so that was not an issue as to the LAD claims.  The CEPA waiver that formed the basis for the dismissal of the LAD claims applied only to retaliatory conduct claims that are also actionable under CEPA.  But plaintiff also had a failure to accommodate claim under the LAD, one that paralleled the ADA claim on which the jury awarded damages.  That claim should not have been dismissed.  And since that claim and the ADA failure to accommodate claim were substantially identical, the jury would have awarded $500,000 on the LAD claim (as it did on the ADA claim) had the LAD claim not wrongly been dismissed.  Accordingly, Justice Solomon directed, “in the interests of justice,” that the jury verdict be molded to award damages on the LAD failure to accommodate claim.

The dissenters agreed with that “eminently equitable outcome.”  But they would have gotten to the same result more directly, by holding that the State Police’s litigation conduct constituted a waiver of sovereign immunity.  The fact that the Legislature had not adopted a statute that gave up sovereign immunity on ADA claims was not dispositive, Justice Albin said.  Since sovereign immunity is a common law doctrine, the Court had the ability to “recognize a litigation-conduct exception to sovereign immunity.”  The Supreme Court of the United States had done that in the analogous context of Eleventh Amendment immunity.

The dissenters seemed to have the better of the argument on sovereign immunity.  But the plaintiff likely cares little about how the Court came out on that issue.  He got his jury verdict back, though in slightly different form.

 

 

 

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