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Fine v. Rutgers

April 13, 2000


The opinion of the court was delivered by: Stein, J.

Argued February 15, 2000

On appeal from the Superior Court, Law Division, Bergen County.

This interlocutory appeal requires us to decide whether defendant Rutgers, the State University of New Jersey, is a public agency for purposes of Rule 4:3-2(a). In pertinent part that Rule requires that actions not affecting real property instituted by or against "public agencies" be brought in the county in which the cause of action arose. Plaintiff Seymour H. Fine ("Fine"), an associate professor at the Rutgers-Newark campus, instituted this action against Rutgers in the Superior Court, Law Division, Bergen County alleging breach of contract and age discrimination. Relying on Rule 4:3-2(a), Rutgers filed a motion to change venue from Bergen to Essex County, the county in which the facts pertinent to the litigation occurred. The Law Division denied that motion, holding that Rutgers is not a public agency for purposes of the venue Rule. The court concluded that "case law clearly supports the position that Rutgers is not considered part of the State for purposes of contractual and discrimination matters." The Appellate Division denied Rutgers' motion for leave to appeal. We granted Rutgers' motion for leave to appeal and now reverse. *fn1


Rutgers hired Fine in September 1977 and promoted him to associate professor in 1981. Fine sought promotion to the rank of professor many times between 1986 and 1994. Each time the evaluation committee determined that Fine's application did not warrant promotion to professor. After the rejection of one such application, Fine filed a grievance. The Grievance Committee remanded his application to a different review committee. That committee ultimately denied his application. Fine then appealed to the Faculty Appeals Board, and that appeal was denied in March 1995. Fine worked at the Rutgers-Newark campus in Essex County during his entire period of employment.

In June 1997, Fine filed a complaint against Rutgers in the Superior Court, Law Division, Bergen County. That complaint alleged that Rutgers' faculty promotion procedures violated Fine's due process rights and breached a collective bargaining agreement. The complaint also alleged that Rutgers illegally considered Fine's age in denying Fine's application for promotion.

Rutgers removed the case to the United States District Court for the District of New Jersey. That court granted summary judgment to Rutgers on Fine's federal age discrimination claim because the complaint was untimely. The court remanded the remainder of the complaint to the Law Division, Bergen County.

In December 1998 Rutgers moved to change venue from Bergen to Essex County. In support of that motion, Rutgers submitted a certification describing three prior employment-related suits brought against Rutgers in which Rutgers successfully changed venue to the county of the plaintiff's employment. Rutgers also noted that "[p]laintiff . . . worked at the University's Newark campus. That is where most of the potential witnesses in this case are employed and where most of the relevant records and documents pertaining to plaintiff's employment at the University are maintained."

The Law Division recognized that "the convenience of public bodies and officials is to be given great weight when questions regarding venue arise." However, the court relied on Frank Briscoe Co., Inc. v. Rutgers, 130 N.J. Super. 493, 506 (Law Div. 1974), a case in which Rutgers was held not to constitute a state entity for purposes of the New Jersey Contractual Liability Act, N.J.S.A. 59:13-1 to -10, and Fuchilla v. Layman, 109 N.J. 319, 330 (1988), a case in which the University of Medicine and Dentistry of New Jersey was held not to be the alter ego of the State for Eleventh Amendment purposes, in an employment discrimination suit filed pursuant to 42 U.S.C.A. § 1983. The court held that Rule 4:3-2(a) was inapplicable because Rutgers should not be considered a public agency in cases involving contractual and employment discrimination matters.


Originally, Rutgers functioned as a private institution although it operated with "substantial governmental financial connections since it became the state's land grant college in 1864." Rutgers v. Piluso, 60 N.J. 142, 155 (1972); see also Trustees of Rutgers College in N.J. v. Richman, 41 N.J. Super. 259, 265-75 (Ch. Div. 1956) (providing detailed history of Rutgers). In 1945 the Legislature enacted a statute authorizing the provision of educational services between Rutgers' Board of Trustees and the State that was a "purely contractual arrangement." Piluso, supra, 60 N.J. at 155. That statute allowed the State to buy collegiate educational services from Rutgers in return for annual appropriations to Rutgers from the Legislature. Ibid.

In 1956 the Legislature created "an entirely different kind of entity and arrangement" when it enacted the "Rutgers, the state university law." Piluso, supra, 60 N.J. at 154-55; N.J.S.A. 18A:65-1 to -73 (the Rutgers Law). The Rutgers Law defined the university as an "instrumentality of the state for the purpose of operating the state university." N.J.S.A. 18A:65-2. The Rutgers Law's provisions were to be "liberally construed to effectuate the purposes and intent thereof." N.J.S.A. 18A:65-9. Since the Rutgers Law's enactment, Rutgers has been described as "a hybrid institution - at one and the same time private and public, with the State being granted a major voice in management, and the designation `State University'; and the institution being granted private autonomy and control of physical properties and assets." Trustees of Rutgers College, supra, 41 N.J. Super. at 289-90.

In Piluso, supra, the Court noted:

The public policy of the state is expressly declared to be, indicative of an intent to create a ...

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