On certification to the Superior Court, Appellate Division, whose opinion is reported at 319 N.J. Super. 324 (1999).
We affirm the judgment and disposition of the Appellate Division substantially for the reasons set forth in Judge Braithwaite's thoughtful and comprehensive opinion. McDonnell v. State of Illinois, 319 N.J. Super. 324 (App. Div. 1999). We add these further observations, however, in view of the strongly asserted views expressed by the Solicitor General of Illinois, appearing pro hoc vice before our Court, that plaintiff's cause of action against the State of Illinois, the Illinois Department of Revenue (IDOR), and individual IDOR employees should be dismissed on comity grounds.
As noted by the Appellate Division opinion, id. at 333-35, the United States Supreme Court in Nevada v. Hall, 440 U.S. 410, 425-26, 99 S. Ct. 1182, 1191, 59 L. Ed. 2d 416, 425-26 (1979), concluded that although the Eleventh Amendment bars suits in federal courts against a state by citizens of another state, it does not prohibit a state from being sued in another state's courts; nor does the full faith and credit clause require the forum State to apply another State's law concerning sovereign immunity if to do so would contravene a significant public policy of the forum State. The Court noted that the question whether one State should defer to the laws of a sister's State consistently has been regarded as a matter of State policy, not constitutional mandate:
The intimate union of these states, as members of the same great political family; the deep and vital interests which bind them so closely together; should lead us, in the absence of proof to the contrary, to presume a greater degree of comity, and friendship, and kindness towards one another, than we should be authorized to presume between foreign nations. And when (as without doubt must occasionally happen) the interest or policy of any state requires it to restrict the rule, it has but to declare its will, and the legal presumption is at once at an end.
[Id. at 426, 99 S. Ct. at 1182, 59 L. Ed. 2d at 428 (quoting Bank of Augusta v. Earle, 38 U.S. 519, 590, 13 Pet. 519, 590, 10 L. Ed. 274 (1839).]
Accordingly, the Court in Hall encouraged but did not compel states to accord deference to each others laws as a matter of comity:
It may be wise policy, as a matter of harmonious interstate relations, for States to accord each other immunity or to respect any established limits on liability. They are free to do so. But if a federal court were to hold, by inference from the structure of our Constitution and nothing else, that California is not free in this case to enforce its policy of full compensation, that holding would constitute the real intrusion on the sovereignty of the States--and the power of the people--in our Union.
[440 U.S. at 426-427, 99 S. Ct. at 1191, 59 L. Ed. 2d at 429.]
In addressing the comity issue, the Appellate Division concluded that to require plaintiff to pursue his claims in Illinois courts pursuant to the Illinois Human Rights Act (HRA), 775 Ill Comp. Stat. 5/1-101 to 5/10-103 (West 1993) would leave plaintiff remediless because the definition of "employee" under the HRA applies only to individuals "performing services for remuneration within the State for an employer." 319 N.J. Super. at 335 (internal quotations omitted). Accordingly, the court concluded that the HRA would not afford plaintiff a remedy. Id. at 336.
We note, however, that the HRA defines a "Public Employee" as "an employee of the State, agency or department thereof, unit of local government, school district, instrumentality or political subdivision." 775 Ill. Comp. Stat. 5/2-101 (H). We also note that the HRA guarantees and secures several rights enumerated in Article 1, Section 17 of the Illinois Constitution, including the right to be free from discrimination. 775 Ill. Comp. Stat. 5/1-102(F). Those provisions of the HRA suggest persuasively that plaintiff could have asserted a cause of action in Illinois under that statute, subject to the limitation that the claim be filed only before the Illinois Human Rights Commission, 775 Ill. Comp. Stat. 5/8-111(c), and that monetary damages are limited to actual damages for injury or loss, back pay, and attorneys' fees. 775 I11. Comp. Stat. 5/8A-104(B),(C), (G). Nevertheless, because the HRA requires discrimination claims to be filed with the Illinois Department of Human Rights within 180 days of when a claimant discovers his injury, 775 Ill. Comp. Stat. 5/7A-102(A)(1), we also conclude that plaintiff would have no remedy under the HRA because his claim would be time barred.
The Appellate Division rested its determination not to apply comity on the unavailability of redress for plaintiff under the HRA, its conclusion that the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, applied to the Illinois defendants, the fact that the LAD would apply to the State of New Jersey if it discriminated against a public employee in violation of the statute, and New Jersey's strong public policy against discrimination in employment. We agree that those reasons argue persuasively against dismissing plaintiff's suit on comity grounds.
We also note that the Appellate Division's rationale is not inconsistent with the Supreme Court of Illinois' pronouncements on the application of comity. In Schoeberleim v. Purdue University, 544 N.E.2d 283 (Ill. 1989), an Illinois resident sued Purdue University (Purdue), an instrumentality of the State of Indiana, in an Illinois state court to recover damages for personal injuries. Under Indiana law plaintiff could have sued Purdue only in Indiana state courts and was subject to a maximum recovery of $300,000. The Illinois Supreme Court noted that if plaintiff sought to assert a claim in Illinois courts against an Illinois state agency, jurisdiction would be limited to the Illinois Court of Claims and recovery would be limited to $100,000. Id. at 286. Because it concluded that Indiana's restrictions on its liability were not inconsistent with those of Illinois, the Court dismissed plaintiff's suit on comity grounds. It observed:
Thus, the generally accepted rationale of the States that have not, through comity, accepted another State's claim of sovereign immunity is that a sister State's claim of immunity will not be recognized if the forum of litigation permits recovery against the home State under similar circumstances. In Illinois, as noted above, under the circumstances presented in this case, Illinois could not be sued in the circuit courts of this State, and a limitation is placed on the amount that may be recovered against Illinois in the Court of Claims. We conclude that on the basis of comity, it is consistent with ...