December 28, 1999
MICHAEL ALLEN, DAVID ABDUS-SABUR, TAJUDDIN ABUR-RA'OOF, LANIECE ALLISON-BROWN, JERRY ALSTON, RICHARD ANDERSON, RENEE ARVIN, RICHEY ASKEW, DANIEL ATES, JOE BAKER, SR., RAYMOND BALLESTER, HATAA BARAKA, TODD BARNETT, ANGELO BIANCHI, DAVID BLACKBURN, MAURICE BOATNER, DENNIS BOGDAN, REGINALDO BOSQUE, MILTON BOYD, LARRY BRANTLEY, JOHN BURNS, NATHANIEL BUSH, ELLEN BUTLER, EDDIE CANNON, PASQUALE CAPOZZOLI, JEROME CARROLL, YVETTE CARROLL, JOHN CASALINHO, GREGORY CASTILLO, CAPRICE CHAVES, HENRY CHERRY, LIZZIE MAE CHISLUM, JOANNE CLARK, CHRISTOPHER COATS, LEONEL COELHO, TIOWANDOLYNN COLEMAN, BEVERLY COLLINS, LANCE COLLINS, SHELBY COWANS, CELESTE CUNNINGHAM, MARLON CURTIS, ALEXANDER DALMIDA, PATRICIA DANIELS, BRUCE DAVIS, EDWARD DAVIS, JOHN DELGUERCIO, THOMAS DIXON, EVONNE DOCK, CARLTON EASTON, CLEVELAND EATMAN, SANDRA ELEY, FRANK EVARISTO, ANDRE FLEMING, DEBORAH FLUKER, DEBORAH FOSTER, ANDRE FRAZIER, FREDDIE FRAZIER, JR. JAMES FRAZIER, LLOYD FULLER, JR., BEN GAMBLE, DAVID GARRY, MARK GAUNT, ARTHUR RAY GIBSON, MICHAEL GILBERT, JOAN GILMORE, HARRY GONZALEZ, NELSON GONZALEZ, GAIL GOOD, GERALD GORDON, DAWN GRANT, LUTHER GREGG, BRANDON GREGORY, ROBIN GRIER, GILVES GRRINGTON, PAMELA HAILSTORK, DAVID HAMMONDS, JAMES HAMILTON, BILLY HARRIS, MERRI HARRIS, JOSE HERNANDE, ANTHONY HIGH, DANA HINES, BENITA HOLMES, TIMOTHY HOUSE, EVA HUGUENIN, JANET HUNTER, DAVID JACKSON, LORRIE JACKSON, TERRANCE JACKSON, JOSE JIMENEZ, MANUEL JIMENEZ, DARRIS JOHNSON, MONIQUE JOHNSON-HOLLEY, DWAYNE JONES, JIMMIE JONES, KENNETH JONES, TOTSIAN JONES, ALTON JOYNER, STANLEY JUDSON, WILLIAM JUNGMAN, JAMES KENNEDY, MICHAEL KENNEDY, ROBERT KENT, EDWARD KITCHEN, JR., DARRELL KORNEGAY, KATHY LAMBERTH, LEONARD LAMBERTH, ANDRE LARKINS, ALVIN LEWIS, ANTHONY LINDSEY, CHRISTINE LINDSAY, ALBERT LOFTON, JAMES LOWERY, JOSE LUGARDO, STACEY MALLORY, ANDRE MANNING, TIMOTHY MAYNE, BRIAN MCCALLUM, MARTA MCCLAIN, TONI MCCOY, CHANDAR MCDANIEL, BRIAN MCGILL, CHESTER MEGILL, GEORGE MIGNER, DERRICK MIKE, DAVID MILLER, MONICA MILLER, DONOVAN MITCHELL, LOUIS MORENA, DARRYL MORGAN, CLARK MORTON, WILLIAM NEALIS, CHARLES NEWSOME, BENJAMIN NEWTON, BEVERLY NOTTINGHAM, LAMONT NUTTER, MANUEL OLIVEIRA, MARQUIS OWENS, ANTONIO PEREIRA, RONNIE PERRY, DARWIN PHILLIPS, PEDRO POZO, SALAHUDDIN RABB, HAKIEM RANDALL, WILLIE RAYFORD, HAROLD REYNOLDS, DEBORAH REVIS, BRENDA RICHARDSON, HAROLD RICHARDSON, JASON RICHARDSON, MOLLY RICHARDSON, TIMOTHY RIGSBY, ANTHONY ROBERTS, DESIREE ROBERTSON, EMMANUEL RODRIGUEZ, LUIS ROSAS, JUDITH SCHLACHTER, GLORIA SCHWINGER, RUTH SAFFOLD, JAMES SANDERS, SHAWN SCOTT-THOMAS, MINNIE SMALL, CEDRIC SEYMOUR, LENORE SIMON, ANDRE SMITH, GARVEN SMITH, KENT SMITH, LEROY SMITH, CARLOS SOARES, JOSEPH SORBINO, EDWIN SOTO, GERALD SOWA, JANELLE SPEARMAN, JOSEPH SPOTSWOOD, JOHN STAFFORD, TIARE STEPHENSON, SEAN ST. PAUL, ALPHONSO STRAUSS, EDWARD SULLIVAN, ANTHONY SWEPSON, RICHARD TATTOLI, DEREK THOMAS, VINCENT THOMAS, GENARO THOMPSON, JEFFREY THOMPSON, PERNELL THOMPSON, LANGSTON TISDALE, RONALD TUCKER, CALVIN TURNER, TERRELL TURNER, LARRY TYSON, JOHN VATASIN, MOISES VAZQUEZ, WILLIAM VICK, SAMUEL WEBSTER, TYRONE WEBSTER, EDDIE WELDON, FREDERICK WHITE, BRIAN WILLIAMS, ERIC WILLIAMS, KENNETH WILLIAMS, JADA WILSON, HAROLYN WING-NEBLETT, WILLIE WINNS, KECIA WRIGHT, CARLTON YOUNG, ON BEHALF OF THEMSELVES AND ALL OTHER PERSONS SIMILARLY SITUATED. PLAINTIFFS-APPELLANTS,
WILLIAM H. FAUVER, CHRISTINE TODD WHITMAN AND STATE OF NEW JERSEY DEPARTMENT OF CORRECTIONS, DEFENDANTS-RESPONDENTS.
Judges Pressler, Landau and Ciancia.
The opinion of the court was delivered by: Ciancia, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 1999
On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Plaintiffs are corrections officers employed by the Department of Corrections who sued the Department, the Commissioner of Corrections, and Governor Whitman (defendants) to obtain "incidental" overtime pay assertedly owed them pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C.A. §201 et seq. and the New Jersey Wage and Hour Law, N.J.S.A. 34:11-56a et seq. Their claims were dismissed by the trial court and they now appeal.
The primary issue before the trial court was whether the defendants were immune from FLSA claims in state court brought by individuals. The trial judge held that such immunity existed under the Eleventh Amendment to the United States Constitution. The correctness of that rationale need not be considered because after the trial court rendered its decision, the United States Supreme Court decided Alden v. Maine, ____ U.S. ____, 119 S. Ct. 2240, 144 L. Ed.2d 636 (1999). That decision holds that states are immune from FLSA suits brought by individuals in state court. The basis for the Court's holding was not the Eleventh Amendment but rather a determination that immunity flowed from the fundamental aspects of sovereignty enjoyed by the states before ratification of the United States Constitution. That immunity was retained by the states as "residuary and inviolable sovereignty" following ratification of the Constitution. Alden v. Maine, supra, 119 S. Ct. at 2247.
On appeal both sides now agree that in the first instance the State is immune from FLSA suits brought in state court by individuals. In Alden v. Maine, supra, however, the Supreme Court noted that states may waive their immunity and that many states have done so. Id. at 2267. Plaintiffs contend New Jersey is a state that has waived its sovereign immunity from suits of this nature. We disagree.
New Jersey has waived its immunity from tort and contractual liability only in specified circumstances. The Tort Claims Act, N.J.S.A. 59:1-1 et seq., and the Contractual Liability Act, N.J.S.A. 59:13-1 et seq., open the State to liability in a limited manner. The Tort Claims Act specifically provides:
a. Except as otherwise provided by this act, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.
b. Any liability of a public entity established by this act is subject to any immunity of the public entity and is subject to any defenses that would be available to the public entity if it were a private person. [N.J.S.A. 59:2-1 (footnote ommitted).]
Our courts have honored this statutory articulation of the State's sovereign immunity. Public entities are absolved from tort liability except under the conditions and circumstances provided by the Tort Claims Act. Schwarz v. Port Auth. Transit Corp., 305 N.J. Super. 581, 593 (App. Div. 1997), certif. denied, 153 N.J. 214 (1998).
The Contractual Liability Act was the Legislature's response to P.T.&L. Constr. Co. v. Commissioner, Dep't of Transp., 55 N.J. 341 (1970), which abrogated sovereign immunity in contract actions. The statute generally treats the State similarly to private individuals or corporations in matters arising out of contracts but there are some very definite limitations and exclusions. See W.V. Pangborne & Co., Inc. v. New Jersey Dep't of Transp., 226 N.J. Super. 367, 373-75 (App. Div. 1988), rev'd on other grounds, 116 N.J. 543 (1989).
The Contractual Liability Act states:
The State of New Jersey hereby waives its sovereign immunity from liability arising out of an express contract or a contract implied in fact and consents to have the same determined in accordance with the rules of law applicable to individuals and corporations; provided, however, that there shall be no recovery against the State for punitive or consequential damages arising out of contract nor shall there be any recovery ...
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