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State Troopers Non-Commissioned Officers Association of New Jersey v. State

July 8, 2009


The opinion of the court was delivered by: Freda L. Wolfson, U.S.D.J.


Before the Court is a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) filed by Defendants, the State of New Jersey, Office of the Attorney General, New Jersey Attorney General Anne Milgram, and the Division of State Police (collectively "Defendants"). This case arises out of the Department of Law and Public Safety's ("DLPS") proscription on the private practice of law by members of the New Jersey State Police (hereinafter "State Troopers" or "Troopers"). Plaintiffs, the State Troopers Non-Commissioned Officers Association of New Jersey and State Troopers Superior Officers Association of New Jersey, the Troopers' collective bargaining agents, bring this suit on behalf a group of about twenty-one officers,*fn1 all of whom are licensed attorneys in the state of New Jersey, to enjoin the State's enforcement of a new ethics code which prohibits State Troopers from engaging in the private practice of law. Plaintiffs challenge this provision of the Code, claiming violations of (1) the Fourteenth Amendment Equal Protection Clause; (2) the Fourteenth Amendment Due Process Clause, specifically Plaintiffs' liberty and property interests; (3) Due Process and Equal Protection provisions of the New Jersey Constitution; and (4) Article I, Section 10 of the United States Constitution, which prohibits a state from impairing existing contractual obligations On April 22, 2009, the Court held oral argument on the pending motion. The Court has reviewed the parties' submissions, and for the reasons stated below, Defendants' Motion to Dismiss is granted.


The facts of this case are not in dispute. Plaintiffs are a group of about twenty-one State Troopers, licensed to practice law in the state of New Jersey, many of whom earned their law degrees while employed by the Division of State Police as State Troopers. Pursuant to a provision in the parties' collective bargaining agreement, Troopers interested in attending an institute of higher education, including law school, could enter into a repayment plan with the Division of State Police whereby the Division would pay for a portion of the tuition. After great sacrifice and effort to obtain their law licenses while employed full-time or part-time as Troopers, the Troopers engaged in limited legal work as a part-time profession. Specifically, Plaintiffs were employed as lawyers for clients in the drafting of wills and other testamentary documents and assisted in real estate closings. While Plaintiffs concede that this type of work obviously constitutes the practice of law, Plaintiffs assure this Court that no Troopers have participated in criminal or quasicriminal proceedings, nor have any acted as a municipal judge, prosecutor, or public defender.

On May 20, 2007, the State Ethics Commission for the DLPS enacted a revised Code of Ethics, which, inter alia, prohibits Troopers from engaging in the outside practice of law in New Jersey or any other jurisdiction in which the Trooper may be admitted. As currently drafted, Troopers may engage in the private practice of law with the express prior approval of the Attorney General in circumstances limited to (1) pro bono representationof the Trooper's spouse, domestic partner, child, or parent in non-adversarial matters; or (2) representation that was initiated before May 20, 2007. Importantly, the Attorney General may not grant approval if the proposed representation would require the Trooper to represent a party in a criminal or quasi criminal matter, before a State licensing or regulatory board, or where the State has an interest adverse to the Trooper's client, even in instances where the Trooper seeks to represent an immediate family member. On June 21, 2007, Plaintiffs, obviously upset by this development, requested an Ethics Opinion from the Advisory Committee on Ethics concerning the ethical implications of the Troopers' outside legal work. The Committee determined that Troopers could engage in the private practice of law pursuant to the Rules of Professional Conduct ("RPC"), but notwithstanding this finding, Defendants continue to enforce the revised Code of Ethics.*fn2

The legislative and administrative backdrop highlights the rationale underscoring the revised Code of Ethics. Years prior to the May 20, 2007 enactment, the State of New Jersey commenced a vigorous ethical reform effort. In November 2004, then acting Governor Richard Codey appointed Supreme Court Justice Daniel O'Hern, Sr. (ret.) and Seton Hall Law Professor Paula A. Franzese as Special Ethics Counsel. As Special Ethics Counsel, the pair was charged with recommending changes to the ethical rules for New Jersey's Executive Branch. In light of its findings, see "Summary of Full Report, Report of the Special Ethics Counsel to the Governor of the State of New Jersey, Ethics Reform Recommendations for the Executive Branch of Government," the New Jersey Legislature enacted amendments to the New Jersey Conflict of Interest Law, effective March 15, 2006.

The State Legislature also called for an independent State Ethics Commission to oversee ethical reform in the state executive branch. Prior to this enactment, an amendment to N.J.S.A. 42:13D-21(a), the Executive Commission on Ethical Standards was not an independent body. Pursuant to the new legislation, the State Ethics Commission was required to enact a new ethics code within 180 days of the amendment. The State Ethics Commission complied and promulgated a new ethics code, effective September 11, 2006, which provides:

Pursuant to section 23(a)(1) of the Conflicts Law, each State agency is required to promulgate a code of ethics to govern and guide the conduct of State employees and special State officers and employees in the agency. Each code must conform to the general standards set forth in section 23 of the Conflicts Law, but may be formulated with respect to the particular needs and problems of the agency to which the code is to apply and, when applicable, shall be a supplement to the uniform ethics code to be promulgated pursuant to section 23(a)(2) of the Conflicts Law. An agency Code of Ethics is not effective until it has first been reviewed by the Attorney General's office and is found to be in compliance with the provisions of the Conflicts Law and any other applicable laws and is subsequently approved by the Commission.

As a result, each agency operating under the auspices of the Executive Branch instituted new ethical guidelines in keeping with the State Ethics Commission's findings.

The DLPS, which oversees the Division of State Police, was no exception. After receiving the State Ethics Commission's approval, the revised Code of Ethics was implemented, effective May 20, 2007. The revised Code of Ethics contains substantial changes. Most importantly, while the former Code of Ethics' interdiction on "moonlighting" as a private lawyer applied only to Assistant and Deputy Attorneys General, the revised Code extended this provision to Troopers as well. Troopers' conduct is also governed by their own Standard Operating Procedure ("SOP") Manual,which incorporates the revised Code of Ethics, and further prohibits Troopers from engaging in outside private security employment.

Citing the various mission statements of the DLPS and the Division of State Police and the Conflict of Interest Law, Defendants contend that the change was compelled by the new statewide code of ethics. In further support, Defendants describe the nature and duties of State Police employment, which include a State Troopers' obligation to be "on duty" at all times. Under N.J.S.A. 53:2-1, the State Police are subject to the call of the Governor, may exercise law enforcement power in a municipality, obtain and execute warrants, and are entrusted with general highway and traffic enforcement.

Generally, the Conflict of Interest Law prohibits a state employee from using his position to secure unwarranted privileges or advantages for himself or others, including direct or indirect financial benefits. The law also requires that state employees refrain from activity that colors their independent judgment, impairs their objectivity, and most importantly, creates the impression that the employee may be engaged in conduct that betrays the public trust. In keeping with its mission "to protect the safety, the security and quality of life of the people of New Jersey through an integrated and coordinated structure of law enforcement and regulatory agencies," Defendants argue, the DLPS decided that actual conflicts of interest, or at the very least, an appearance of impropriety, could arise where Troopers engage in the private practice of law.

Defendants seek dismissal of Plaintiff's Complaint, claiming that (1) sovereign immunity shields Defendants from liability for damages and entitles Plaintiffs to only prospective injunctive relief against Attorney General Anne Milgram; (2) the revised Code of Ethics is amply supported by legitimate governmental objectives and survives rational basis review; (3) the proscription on secondary legal employment does not implicate either a property or liberty interest under the Due Process Clause; and (4) the revised Code of Ethics does not impair any existing contracts and as such, does not run afoul of the Contract Clause of the United States Constitution, Article I, section 10.

B. Procedural Background

Plaintiffs initiated this action in United States District Court for the District of New Jersey on October 27, 2008. Thereafter, Defendants filed the present Motion to Dismiss Plaintiff's Complaint on March 11, 2009. Plaintiffs have submitted opposition thereto. The Court heard oral argument on the Motion on April 22, 2009, wherein both parties made certain representations, including Plaintiffs' concession that they may only seek injunctive relief against Attorney General Anne Milgram and that Plaintiffs' state constitutional claims are subsumed by their federal constitutional claims under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Plaintiffs also stipulated at oral argument that their Contract Clause claim under Article I, section 10 is not legally viable. For the reasons that follow, the Court will grant Defendants' Motion to Dismiss Plaintiff's claims.


A. Standard of Review

When reviewing a motion to dismiss on the pleadings, courts "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008) (citation and quotations omitted). In Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Supreme Court clarified the 12(b)(6) standard. Specifically, the Court "retired" the language contained in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 1968 (quoting Conley, 355 U.S. at 45-46). Instead, the factual allegations set forth in a complaint "must be enough to raise a right to relief above the speculative level." Id. at 1965. As the Third Circuit has stated, "[t]he Supreme Court's Twombly formulation of the pleading standard can be summed up thus: 'stating... a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element. This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Phillips, 515 F.3d at 234 (quoting Twombly, 127 S.Ct. at 1965).

B. Sovereign Immunity

Initially, the Court must determine whether Plaintiffs are precluded from seeking monetary damages in their Complaint. Defendants contend that Plaintiffs' claims against the State of New Jersey, Office of the Attorney General and the State of New Jersey, Division of State Police, must be dismissed in their entirety; instead, Plaintiffs may only proceed with their claims for prospective injunctive relief against Attorney General Anne Milgram.

The Eleventh Amendment to the United States Constitution provides:

The Judicial power of the Untied States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. CONST. amend. XI. Over time, the Eleventh Amendment's broad immunity provisions have been extended to not only preclude suits brought by citizens of other states, but also claims brought by a state's own citizens. Koslow v. Pennsylvania, 302 F.3d 161, 168 (3d Cir. 2002) (citing Hans v. Louisiana, 134 U.S. 1, 13 (1890)). However, Eleventh Amendment immunity is not absolute. Recognizing that "[t]he State has no power to impart to him any immunity from responsibility to the supreme authority of the United States," Ex parte Young, 209 ...

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