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Allen v. Fauver

April 10, 2001

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 COELH, 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 FLUCKER, 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 HERNANDEZ, 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 MAYE, 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, FREDRICK WHITE, BRIAN WILLIAMS, ERIC WILLIAMS, KENNETH WILLIAMS, JADA WILSON, HAROLYN WING-NEBLETT, WILLIE WINNS, KECIA WRIGHT AND CARLTON YOUNG, ON BEHALF OF THEMSELVES AND ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
v.
WILLIAM H. FAUVER, CHRISTINE TODD WHITMAN AND STATE OF NEW JERSEY DEPARTMENT OF CORRECTIONS, DEFENDANTS-RESPONDENTS.



The opinion of the court was delivered by: Per Curiam

ON APPEAL FROM ON CERTIFICATION TO Appellate Division, Superior Court

DECIDED April 10, 2001

Argued February 13, 2001

On certification to the Superior Court, Appellate Division, whose opinion is reported at 327 N.J. Super. 14 (1999).

Plaintiffs are State corrections officers who seek incidental overtime wages under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 to § 219, and New Jersey's Wage and Hour Law, N.J.S.A. 34:11-56a1 to -56a30. They filed this class action against the State, the Governor, and the Commissioner of Corrections, the latter two in their official capacities only.

The trial court dismissed both counts of plaintiffs' complaint, and the Appellate Division affirmed that judgment. The Appellate Division held that the Wage and Hour Law did not apply to the State because that statute does not include the State of New Jersey in the definition of "employer," N.J.S.A. 34:11-56a1(g), and also held that plaintiffs could not bring an action under the FLSA because the State had not waived its sovereign immunity and consented to suit under the FLSA. Allen v. Fauver, 327 N.J. Super. 14, 19-20, 21 (App. Div. 1999). We affirm those determinations substantially for the reasons expressed in the Appellate Division's persuasive opinion and write only to elaborate on the FLSA issue.

I.

In Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996), the United States Supreme Court held that Congress does not have authority pursuant to the Commerce Clause of the United States Constitution to abrogate a state's Eleventh Amendment sovereign immunity and to require it to face suit under the FLSA in federal court, absent the state's consent to suit. Not long thereafter, the United States Supreme Court held in Alden v. Maine, 527 U.S. 706, 119 S. Ct. 2240, 144 L. Ed. 2d 636 (1999), that Congress similarly does not have the authority to render states susceptible to FLSA suits in their own courts, absent their consent to suit. The holding in Alden was based not on Eleventh Amendment grounds, but rather on the very structure of the Constitution and the "inviolable" and "residuary" sovereignty retained by the states following ratification of the United States Constitution. Id. at 715, 119 S. Ct. at 2247, 144 L. Ed. 2d at 653 (quoting The Federalist No. 39, at 245 (James Madison) (Clinton Rossiter ed., 1961)).

Thus, the Court was left with the issue of whether Maine had waived its immunity from suit for the FLSA claims. Id. at 757, 119 S. Ct. at 2268, 144 L. Ed. 2d at 680. In considering that question, the Court stated that Maine "adheres to the general rule that ?a specific authority conferred by an enactment of the legislature is requisite if the sovereign is to be taken as having shed the protective mantle of immunity.'" Id. at 757-58, 119 S. Ct. at 2268, 144 L. Ed. 2d at 680 (emphasis added) (quoting Cushing v. Chen, 420 A.2d 919, 923 (Me. 1980)). Because immunity was not shed concerning claims brought under the FLSA, the dismissal of the plaintiffs' action was affirmed. Id. at 758, 119 S. Ct. at 2268, 144 L. Ed. 2d at 680-81. Similarly here, the question devolves into one of consent: Has the State of New Jersey consented to waive its sovereign immunity and submit to suit under the FLSA in its state courts?

II.

Historically, our courts have long recognized that an essential and fundamental aspect of sovereignty is freedom from suit by private citizens for money judgments absent the State's consent. Lodor v. Baker, Arnold & Co., 39 N.J.L. 49, 50 (Sup. Ct. 1876); see also Taylor v. New Jersey Highway Auth., 22 N.J. 454, 466-67 (1956) (stating that "[t]he doctrine that the State may not be sued in our courts without its consent is firmly established in our jurisprudence"); Gallena v. Scott, 11 N.J. 231, 237 (1953) (holding that defendants as representatives of State cannot bind State to litigate claim for recovery of money because suit essentially against State, therefore it is not maintainable without sovereign consent signified by legislative action or waiver of immunity). Consent has required clear and unambiguous legislative expression. Strobel Steel Constr. Co. v. State Highway Comm'n, 120 N.J.L. 298, 302 (E. & A. 1938) (noting that strict construction of statutes abrogating sovereign immunity is required to ensure that statutes in derogation of sovereignty "?are not permitted to divest the state or its government of any of its prerogatives, rights, or remedies, unless the intention of the Legislature to effect such object is clearly expressed in the statute'") (quoting New Jersey Interstate Bridge & Tunnel Comm'n v. Jersey City, 93 N.J. Eq. 550, 553 (Ch. 1922)).

Over time, tolerance for the doctrine of sovereign immunity eroded, culminating in two decisions of this Court concerning the State's liability in tort and contract, Willis v. Department of Conservation and Economic Development, 55 N.J. 534 (1970), and P, T & L Construction Co. v. Commissioner, Department of Transportation, 55 N.J. 341 (1970). See Rochinsky v. New Jersey Dep't of Transp., 110 N.J. 399, 404 (1988). In P, T & L and Willis, the Court determined that it would no longer bar citizens from seeking judicial resolution of their tort and contract actions against the State. Previously, the Court had declined to entertain such actions because payment of judgments would depend on the willingness of other branches of government to make the necessary appropriations. In P, T & L and Willis, the Court departed from that approach because it was unwilling to presume that the coordinate branches would be indifferent to judicial judgments. P, T & L, supra, 55 N.J. at 345-46. The courts were therefore opened to litigants who sought to sue the State in tort or contract actions, with the understanding that, nonetheless, the Legislature retained its power to accept the judgment and provide for payment. Id. at 346.

Legislative consent to suit then remained integral to waiver of sovereign immunity, for without express legislative consent to suit there is no ability to secure satisfaction of the judgment. The legislative response to the issue of abrogation of sovereign immunity for tort and contract liability came in 1972 in the form of the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, and the Contractual Liability Act, N.J.S.A. 59:13-1 to 13-10. With regard to contract claims, in pertinent part, the Legislature agreed to waive "sovereign immunity from liability arising out of an express contract or a contract implied in fact," but not for "punitive or consequential damages arising out of contract" or "for claims based upon implied warranties or upon contracts implied in law." N.J.S.A. 59:13-3. Rules of strict statutory construction control application of that statute because it derogates sovereignty. Strobel Steel Constr. Co., supra, 120 N.J.L. at 302.

III.

Plaintiffs point to no New Jersey statute authorizing suit against the State for FLSA claims. They cannot, for there are none.

On reconsideration before the Appellate Division and before this Court, plaintiffs point to a reference in a collective bargaining agreement that was not made part of this record, but ...


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