Defendant Grover C. Richman, Jr., Attorney-General of New Jersey, has moved for a summary judgment on the pleadings. For the purpose of this motion, the facts as pleaded in the complaint must be taken as true.
The complaint is in two counts. One relates to the plaintiff Harry Eleuteri, the second to the plaintiff Edward Danley. Although the details of the two causes of action vary somewhat factually, the issues raised are common to both. The complaint alleges that:
The plaintiffs are residents and citizens of the State of New Jersey and entitled to the benefits and rights guaranteed by the Constitution and laws of this State and of the United States. Each of them possessed a dwelling house within the County of Burlington and each of them was subjected to a search which was illegal, as violative of both the Federal and State Constitutions. As a result of the unlawful search of the plaintiffs' properties, there was obtained by an unlawful seizure certain papers, documents and other property which was relied upon by the defendants to obtain indictments against the plaintiffs, charging them with bookmaking, and which the State of New Jersey relies and will rely upon as evidence against them in a trial of the said indictments.
Although the Constitution of the State of New Jersey guarantees to the plaintiffs the right to be secure in their persons, houses, papers and effects against unreasonable searches and seizures and against the violation of that right, by Article I and section VII, the courts of law of this State have ruled that evidence seized in a search and seizure which violates the State Constitution is nonetheless admissible at a criminal trial of those who own said property. The effect of said construction by the law courts in effect denies to the plaintiffs their right to be secure against unreasonable search and seizure.
The sole remedy they have is a civil action for damages against the officers who trespassed upon their property and against their persons in violation of the constitutional guarantee, and this remedy is not adequate.
They demand a judgment declaring that the searches and seizures complained of constitute an unconstitutional invasion of their persons and property, that the defendants be required to make a full disclosure and accounting of each and every item of property taken from the premises of the plaintiffs, and that they either be required to return it to them or deliver it to this court for destruction. They further seek a permanent injunction restraining the defendants from offering in evidence at the trial of the above indictments any of the papers, documents or property seized as above
set forth, and an injunction against any other and further similar searches and seizures in the future.
Plaintiffs further allege that:
The above acts constituted a violation of the rights guaranteed to them under the Fourth Amendment to the Constitution of the United States, and through the Fourteenth Amendment of the Constitution of the United States the violation is a taking of their liberty and property without due process of law. The defendants were obligated to take an oath to support the Constitution of the United States, and the threatened conduct of the defendants is indicative of an official conscience departing from the obligation of the oath required by the Constitution of the United States, and actually taken by the defendants.
By way of relief they demand an injunction, the effect of which would be to direct the official conscience of the defendants in such fashion as to be consistent with and in harmony with the due process of law under the Fourteenth Amendment, including the obligations of the defendants to observe the rights the plaintiffs enjoy under the Fourth Amendment to the Constitution.
We will deal first with the defendant's contention that the defendant Richman is immune from suit because he is the Attorney-General of the State of New Jersey and that, therefore, he is the alter ego of the State, and that as such, this suit is a suit against the State, since a judgment obtained will operate to control the action of the State.
The suit here brought does not deny the principle of the sovereign immunity from suit without its consent. This is not a suit against the State, since the gravamen of the action is the invasion of the personal and property rights of the plaintiffs by an officer of the State acting in an unconstitutional manner. The keeping of officers and agencies of the State within lawful bounds does not constitute a restraint upon state action. The cloak of immunity from suit is stripped from them when their acts constitute an ...