governance of the University, the control, supervision, and conduct of the University is vested, by statute, in the University's Board of Governors and Board of Trustees. N.J.S.A. 18A:65-25 and 26.
The composition of the Board of Governors is comprised of two ex officio members without voting privileges, and eleven voting members. The ex officio members are the President of the University and the Chancellor of the New Jersey Department of Higher Education. The Chancellor of the Department of Higher Education is appointed by the Board of Higher Education, subject to the approval of the Governor of the State of New Jersey. Six of the eleven voting members of the Board of Governors are appointed by the Governor of New Jersey, with the advice and consent of the New Jersey Senate. The remaining five members are appointed by the Board of Trustees. N.J.S.A. 18A:65-14, N.J.S.A. 18A:3-20.
The composition of the Board of Trustees consists of ex officio members without vote, public members, alumni or alumnae, and charter members. The ex officio members are the President of the University and the Chancellor of the Department of Higher Education. There are eleven public members, all of whom are appointed by the Governor with the advice and consent of the New Jersey Senate. There are not less than twelve nor more than twenty alumni or alumnae trustees, all elected by the Board of Trustees. The charter trustees are those serving as such as of August 31, 1956, without definite term and those elected thereafter for a definite term. N.J.S.A. 18A:65-15.
Thus, both the governance of the University and its budget and expenditures are substantially in the control of the state, and I find that the degree to which the University is not autonomous also brings it within Eleventh Amendment protection. Moreover, as an educational institution, Rutgers is performing a governmental rather than a proprietary function. See Handsome v. Rutgers, The State University, 445 F. Supp. 1362, 1367 n.7 (D.N.J. 1978). In addition, Rutgers is not subject to local taxation.
Application of most of the Urbano factors, therefore, demonstrates Rutgers' entitlement to Eleventh Amendment immunity. However, those factors are not satisfied in several instances. First, Rutgers is separately incorporated. Second, it has the power to sue and be sued. Third, the state is not directly liable for obligations incurred by Rutgers.
As to Rutgers' separate incorporation, I find that to be noncontrolling. A number of state universities have been held to be protected by the Eleventh Amendment despite separate incorporation. See Jagnandan v. Giles, 538 F.2d 1166 (5th Cir. 1976); Wellman v. Trustees of Purdue University, 581 F. Supp. 1228 (N.D. Ind. 1984).
As to Rutgers' ability to sue and be sued and the provision in the statute limiting the state's liability for Rutgers' obligations, I find that, at this point, these factors go to the question of whether Rutgers has waived its immunity. By focusing on these provisions plaintiff has, in essence, argued that such a waiver has occurred. Plaintiff finds support for that argument in Frank Briscoe Co. v. Rutgers, The State University, 130 N.J. Super. 493, 327 A.2d 687 (Law Div. 1974), in which the court found the defense of sovereign immunity to be unavailable to Rutgers in a contract action.
A waiver of sovereign immunity is not, however, also a waiver of Eleventh Amendment immunity in a federal action. Thus, "where a public instrumentality is created with the right 'to sue and be sued' that waiver of immunity in the particular setting may be restricted to suits or proceedings of a special character in the state, not the federal courts." Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275, 277, 3 L. Ed. 2d 804, 79 S. Ct. 785 (1959). See also Trotman v. Palisades Interstate Park Commission, 557 F.2d 35, 39 (2d Cir. 1977). Whether a "sue and be sued" clause is a waiver of Eleventh Amendment immunity is a federal question, Trotman, supra, at 39, and such a waiver will be found "only where stated 'by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.'" Edelman v. Jordan, 415 U.S. 651, 673, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974), quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S. Ct. 458, 464, 53 L. Ed. 742 (1909). See also Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S. Ct. 3142, 87 L. Ed. 2d 171 (1985). I do not find that such a waiver has occurred here. Rutgers is subject to the New Jersey Torts Claims Act, and, under Briscoe, supra, may be sued in state court at least on contract claims. Rutgers may, therefore, be sued in this action in state court, provided that the requirements of the New Jersey Torts Claims Act have been met. As an instrumentality of the state, however, Rutgers may not be sued by plaintiff in this court.
I note that in holding that the Eleventh Amendment applies to Rutgers, I am in accord with the majority of federal courts which have considered the applicability of the amendment to state universities. See Hall v. Medical College of Ohio at Toledo, 742 F.2d 299 (6th Cir. 1984), cert. denied, 469 U.S. 1113, 105 S. Ct. 796, 83 L. Ed. 2d 789 (1985); Clay v. Texas Women's College, 728 F.2d 714 (5th Cir. 1984); Rutledge v. Arizona Board of Regents, 660 F.2d 1345 (9th Cir. 1981), aff'd sub nom., Kush v. Rutledge, 460 U.S. 719, 75 L. Ed. 2d 413, 103 S. Ct. 1483 (1983); Skehan v. Board of Trustees of Bloomsburg State College, 590 F.2d 470, 488 (3d Cir. 1978) (State college was immune under Eleventh Amendment even in light of decision of U.S. Supreme Court in Monell v. Department of Social Services of City of New York, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978)); Perez v. Rodriguez, 575 F.2d 21 (1st Cir. 1978); Jagnandan v. Giles, 538 F.2d 1166, 1175 (5th Cir. 1976), cert. denied, 432 U.S. 910, 53 L. Ed. 2d 1083, 97 S. Ct. 2959 (1977) (where State exercised significant control over operation of university and treasury of State provided up to seventy-two (72%) percent of funds which funds were to be subject to fiscal control Eleventh Amendment applied); Prebble v. Brodrick, 535 F.2d 605 (10th Cir. 1976) (action barred against University of Wyoming which was governed by Board of Trustees appointed by governor and funded by appropriations from State legislature. Id. at 610); Long v. Richardson, 525 F.2d 74 (6th Cir. 1975); Thonen v. Jenkins, 517 F.2d 3 (4th Cir. 1975); McAdoo v. Toll, 591 F. Supp. 1399, 1402 (D. Md. 1984) (plaintiff's claims for retrospective monetary relief against University of Maryland are barred by Eleventh Amendment because damages awarded would be borne by taxpayers based on review of Maryland statutes respecting university); Wellman v. Trustees of Purdue University, 581 F. Supp. 1228, 1231 (N.D. Ind. 1984) (because governor appoints trustees of Purdue, Purdue is funded largely, but not entirely, by State, State controls financing and may revise powers of trustees and Indiana legislature and State courts have defined Purdue as an instrumentality of the State, Eleventh Amendment bars suit); Moxley v. Vernot, 555 F. Supp. 554 (S.D. Cal. 1982) (University of California, Irvine, is an arm of the State for purposes of Eleventh Amendment); Vaughn v. Regents of University of California, 504 F. Supp. 1349 (E.D. Cal. 1981); Weisbord v. Michigan State University, 495 F. Supp. 1347 (W.D. Mich. 1980).
Defendants also assert that plaintiff's claims against the individual police officers are barred by the Eleventh Amendment because plaintiff seeks retroactive relief against these defendants for actions taken by them in their official capacity as police officers for the University. Defendants rely primarily on Edelman v. Jordan, supra, in which the United States Supreme Court held that an equal protection claim against Illinois administrators of a federal-state program was barred by the Eleventh Amendment since a judgment against those officials could only be satisfied from the general revenues of the state. While prospective relief may be sought against state officials acting in their official capacity, "a monetary award indistinguishable from one against the state itself is prohibited by the Eleventh Amendment even when the suit is filed against nominal state officials." Spicer v. Hilton, 618 F.2d 232, 236 (3d Cir. 1980) (citing Edelman v. Jordan, supra). See also Everett v. Schramm, 772 F.2d 1114, Slip Op. at 10-11 (3d Cir. 1985).
Plaintiff argues that even if Rutgers is found to be an instrumentality of the state, summary judgment should not be granted as to the claims against the individual officers because there is a factual question as to whether they were acting in their official capacity. Plaintiff's complaint, however, names the officers as defendants in their official capacity only and fails to allege claims against them for actions taken in their individual capacity. The officer defendants are named in the complaint as "Patrolman Maria Santana" and "Patrolman Stanley Kosinski". Further, the complaint alleges that the officers "were acting under color of law and under color of their authority as Police Officers of Rutgers." Complaint, Count I, para. 1.
The defendant officers are indemnified by the University and therefore a judgment against them would come from state revenues to the same extent as would a judgment against the University. Since plaintiff seeks retroactive relief against the officers for actions taken in their official capacity, I find that plaintiff's claims are barred by the Eleventh Amendment.
Since I am granting summary judgment dismissing plaintiff's entire complaint on Eleventh Amendment grounds, I find it unnecessary to consider defendants' alternative motions for summary judgment on the grounds of lack of specificity or for partial summary judgment. For the same reason I also have not considered either defendants' motion for leave to amend their answer or plaintiff's cross-motion for leave to amend his complaint.
Defendants' motion for summary judgment dismissing plaintiff's complaint on the grounds that plaintiff is barred by the Eleventh Amendment from bringing this suit in this court is granted. Counsel for defendants are requested to submit an appropriate form of order.
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