This matter comes on before this court on motion of defendant State of New Jersey to dismiss the first count of the amended complaint filed on the grounds of sovereign immunity, and as barred by New Jersey statute N.J.S.A. 52:4A-1. The motion as filed concerns itself with threshold immunity, namely, whether under the facts of this case plaintiff may even file a complaint against defendant State of New Jersey.
The factual history leading to the filing of the amended complaint is as follows: plaintiff Walter Strauss was convicted in Bergen County on May 14, 1966 for selling marijuana to Frederick Cordes, an undercover narcotics agent of
the New Jersey State Police, in violation of N.J.S.A. 24:18-4. His principal defense at the trial was that he had been entrapped by Cordes and an informant, Joseph Corrolla. His conviction was affirmed by the Appellate Division; certification was denied by both the New Jersey and United States Supreme Courts. Strauss was released on parole after serving five years of a 10-15 year sentence. A writ of habeas corpus was granted by United States District Court Judge Shaw on November 16, 1971 on the grounds that informer Corrolla, an active participant in establishing an atmosphere of confidence both prior to and during the moments of critical conversation preceding the sale of the drug, was not available at the trial. Judge Shaw found that
Upon this basis the conviction was vacated and the State was directed to move for retrial within 120 days from the date of the writ of habeas corpus. The State did not retry Strauss.
Subsequently, on August 17, 1973, Strauss filed a pro se complaint for civil damages against the State of New Jersey, which was amended on January 28, 1974 by counsel to state a claim for malicious prosecution based upon a conspiracy by Cordes, the State and the informant Corrolla.
The State, through the Attorney General, has moved for dismissal as to count of the amended complaint which alleges a cause of action against the State of New Jersey. Both parties agreed that the cause of action, if any, arises during the period covered by N.J.S.A. 52:4A-1. The Attorney General argues that this statute bars any recovery by Strauss against the State under the theory of sovereign immunity. N.J.S.A. 52:4A-1 provides:
Except for actions founded upon the Constitution of this State or the United States or an express provision of the statutory laws of this State, no action shall be instituted or continued against the State or any department or other agency thereof for the recovery of money damages, based on tort, where the cause of action accrues prior to July 1, 1972.
Plaintiff argues that the complaint alleges a violation of his due process rights under the Federal Constitution, and his rights under Art. I, par. 10, N.J. Const. (1947) therefore, the cause of action falls within the express exception found in N.J.S.A. 52:4A-1 which excludes actions founded upon the Constitution of this State or the United States from the immunity provided in the statute.
Prior to 1970 the State of New Jersey had traditionally enjoyed sovereign immunity in the area of contract and tort liability. However, in 1970 the New Jersey Supreme Court abolished the common-law sovereign immunity of the State in contract actions, P., T. & L. Const. Co. v. Comm'r, Dept. of Transp., 55 N.J. 341 (1970), and in tort actions, Willis v. Dept. of Cons. & Ec. Dev., 55 N.J. 534 (1970).
The Willis case was decided on April 20, 1970, and on June 15, 1970 the Legislature, as a direct response, amended N.J.S.A. 52:4A-1, which was intended to bar any action against the State of New Jersey which accrued prior to July 1, 1971. This act was later ...