NEW JERSEY EDUCATION ASSOCIATION v. STATE OF NEW JERSEY

Filing 28

OPINION filed. Signed by Judge Anne E. Thompson on 12/12/2011. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

NEW JERSEY EDUCATION
ASSOCIATION, et al.
Civ. No. 11-5024
Plaintiffs,
OPINION
v.
STATE OF NEW JERSEY, et al.
Defendants.

THOMPSON, U.S.D.J.
This matter has come before the Court on the Defendants New Jersey Senate and New
Jersey General Assembly‘s (the ―Legislative Defendants‖) Motion to Dismiss [Docket # 18].
The Plaintiffs in this matter jointly oppose this motion [19]. The Court has decided this motion
after considering all of the parties‘ submissions and without oral arguments pursuant to Fed R.
Civ. P. 78(b). For the reasons that follow the Legislative Defendants‘ motion will be granted.
I.

BACKGROUND

This case arises from the enactment of Chapter 78 of Public Law 2011 (―Chapter 78‖),
which made changes to the New Jersey State retirement system for public employees. Plaintiffs
allege that these changes are unconstitutional because, inter alia, the enactment of Chapter 78
impairs pre-existing contracts, violates the Due Process Clause, and violates the Takings Clause.
The Plaintiffs bring suit for these claims under 42 U.S.C. § 1983. Moreover, Plaintiffs allege
that these changes violate provisions of the New Jersey State Constitution and that Defendants

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are liable on a theory of promissory estoppel. Plaintiffs seek declaratory and injunctive relief, as
well as money damages.
The Legislative Defendants have moved to dismiss the claims against them on the basis
of legislative and sovereign immunity. They argue that the federal claims against them must be
dismissed based on federal-common-law legislative immunity, and that the state-law claims
against them must be dismissed for a litany of reasons also related to absolute immunity.
Plaintiffs argue that federal-common-law legislative immunity, state-common-law legislative
immunity, and the New Jersey Speech and Debate Clause all apply only to legislators in their
personal capacities and not to legislative bodies as a whole.
II.

LEGAL STANDARD

On a motion to dismiss for failure to state a claim, a ―defendant bears the burden of
showing that no claim has been presented.‖ Hedges v. United States, 404 F.3d 744, 750 (3d Cir.
2005). When considering a Rule 12(b)(6) motion, a district court should conduct a three-part
analysis. Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). ―First, the court must ‗take note
of the elements a plaintiff must plead to state a claim.‘‖ Id. (quoting Ashcroft v. Iqbal, --- U.S. --, 129 S. Ct. 1937, 1947 (2009)). Second, the court must accept as true all of a plaintiff‘s wellpleaded factual allegations and construe the complaint in the light most favorable to the plaintiff.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009). But, the court should
disregard any conclusory allegations proffered in the complaint. Id. Finally, once the wellpleaded facts have been identified and the conclusory allegations ignored, a court must next
determine whether the ―facts are sufficient to show that plaintiff has a ‗plausible claim for
relief.‘‖ Id. at 211 (quoting Ashcroft v. Iqbal, 129 S. Ct. at 1949). This requires more than a
mere allegation of an entitlement to relief. Id. ―A complaint has to ‗show‘ such an entitlement

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with its facts.‖ Id. A claim is only plausible if the facts pleaded allow a court reasonably to infer
that the defendant is liable for the misconduct alleged. Id. at 210 (quoting Iqbal, 129 S. Ct. at
1948). Facts suggesting the ―mere possibility of misconduct‖ fail to show that the plaintiff is
entitled to relief. Id. at 211 (quoting Iqbal, 129 S. Ct. at 194).
The issues of state sovereign immunity and absolute legislative immunity are both
properly considered on a motion to dismiss under Rule 12(b)(6). See Carter v. City of
Philadelphia, 181 F.3d 339, 343 (3d Cir. 1999) (considering sovereign immunity under Rule
12(b)(6)); Brown v. City of Camden (In re Camden Police Cases), Nos. 11-1315, 10-4757, 2011
U.S. Dist. LEXIS 92314, (D.N.J. Aug. 18, 2011) (same); Hillburn v. Bayonne Parking Auth., No.
07-5211, 2009 U.S. Dist. LEXIS 6762, *16–17 (D.N.J. Jan. 30, 2009) (considering legislative
immunity under Rule 12(b)(6)).
III.

DISCUSSION

The claims in this case raised against the Legislative Defendants appear only to challenge
the passing of Chapter 78, not its enforcement. Therefore, for the following reasons, all claims
against the Legislative Defendants must be dismissed.
A. Federal Claims
The federal claims raised against the Legislative Defendants under 42 U.S.C. § 1983 in
this case must be dismissed. It is a long-established tenant of federal practice that state
legislators are immune from liability under § 1983. See, e.g., Tenney v. Brandhove, 341 U.S.
367 (1951). This is because ―a private civil action, whether for an injunction or damages, creates
a distraction and forces [legislators] to divert their time, energy, and attention from their
legislative tasks to defend the litigation.‖ Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491,
503 (1975). Plaintiffs argue that this immunity does not extend to legislative bodies as a whole,

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but they are mistaken; this case is clearly within the controlling confines of the Supreme Court‘s
decision in Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719
(1980).
In Consumers Union the Supreme Court was asked to address the question whether a
state appellate court and its individual members were legislatively immune from suit for
promulgating and passing the State Bar Code for its attorneys. In addressing this question, the
Supreme Court first concluded that passing the State Bar Code was a legislative, and not a
judicial, act. Id. at 731. Having concluded this, the Court next held that legislative immunity
applies in the same fashion whether equitable or legal relief is sought under § 1983. Id. at 732–
33 (―In Tenney we concluded that Congress did not intend § 1983 to abrogate the common-law
immunity of state legislators. Although Tenney involved an action for damages under § 1983, its
holding is equally applicable to § 1983 actions seeking declaratory or injunctive relief.‖); see
also Larsen v. Senate of the Commonwealth of Pennsylvania, 152 F.3d 240, 252–53 (3d Cir.
1998).
The Court then turned to the issue directly relevant to the parties‘ arguments in this case.
The Court stated, ―[T]here is little doubt that if the Virginia Legislature had enacted the State Bar
Code and if suit had been brought against the legislature, its committees, or members . . . the
defendants in that suit could successfully have sought dismissal on the grounds of absolute
legislative immunity.‖ Id. at 733–34 (emphasis added). Plaintiffs argue that this is merely dicta.
However, the Supreme Court ultimately held in Consumers Union that ―the Virginia Court and
its members are immune from suit when acting in their legislative capacity.‖ Id. at 734
(emphasis added). In other words, the state body acting in a legislative capacity—and not just its
individual members—were immune from suit under § 1983. See also Hughes v. Lipscher, 852 F.

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Supp. 293, 296–97 (D.N.J. 1994) (holding that the New Jersey Supreme Court, as a body, was
immune from suit under § 1983 in its legislative capacity). Therefore, while Plaintiff‘s statement
that ―[t]he Court did not expressly hold that state legislatures enjoy absolute common-law
immunity from civil suits and claims[,] [n]or has it ever done so,‖ (Pls.‘ Br. at 13), is technically
correct, this is so only because the Supreme Court has never been presented with this exact
question. The Supreme Court has held that state bodies acting in a legislative capacity do enjoy
absolute common-law immunity from § 1983 claims, whether or not the relevant state body is
actually the state legislature. Therefore, the present case is clearly within the controlling purview
of Consumers Union, and the § 1983 claims against the Legislative Defendants must be
dismissed.
B. State Claims
The state-law claims against the Legislative Defendants present a different question for
the Court. The federal-common-law legislative immunity discussed above is inapplicable to
Plaintiffs‘ state-law claims. See, e.g., Lake Country Estates, Inc. v. Tahoe Reg’l Planning
Agency, 440 U.S. 391, 405 (1979). Plaintiffs argue that state legislative immunity doctrine
properly distinguishes between legislators (to whom the doctrine applies) and the legislative
body (to which the doctrine does not apply), even if federal law does not.
Plaintiffs have essentially two arguments: first, they argue that this is settled law as
shown by several cases in which legislative bodies have been a party to the litigation; and
second, if this question is not settled law, the Court should be persuaded by other states‘ highest
courts that have held that the Speech and Debate Clause contained in their state constitution is
substantially narrower than the federal counterpart. Defendants, on the other hand, make the
following arguments: (1) the Court should be persuaded by federal authority because New Jersey

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state courts have consistently relied on federal precedent when interpreting the New Jersey
version of the Speech and Debate Clause; (2) even if there was a conflict between federal and
state law on this issue, the Supremacy Clause of the United States Constitution requires
application of federal law; (3) the Court should abstain from deciding this unsettled question
under Railroad Commission of Texas v. Pullman, 312 U.S. 496 (1941) and its progeny, and
therefore dismiss the state law claims against the Legislative Defendants; (4) that the Court
should refuse to exercise supplement jurisdiction over the state law claims; and (5) the Eleventh
Amendment prevents a federal court from requiring a state actor to conform their conduct to
state law.
Contrary to the Plaintiffs‘ contention, the question of state legislative immunity appears
to be unsettled in the New Jersey state courts. As such, the Court will not address the state
legislative immunity issue presented by the parties because doing so would require the Court to
answer an unsettled question of state law and because there are alternative grounds upon which
the Legislative Defendants can prevail. Pullman, 312 U.S. at 500 (―The reign of law is hardly
promoted if an unnecessary ruling of a federal court is thus supplanted by a controlling decision
of a state court.‖). At this time, the Court will dismiss the remaining state-law claims against the
Legislative Defendants because such claims are barred by the Eleventh Amendment.1

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The Court is aware that, generally speaking, ―[a]n issue is waived unless a party raises it in its opening brief,‖
Laborers’ Int’l Union of N.Am. v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994), and that the Legislative
Defendants did not raise this issue until its reply brief. However, because of the weighty constitutional concerns
inherent in a federal court forcing a state legislature to abide by its own state constitution, the Court deems
consideration of this issue appropriate. The federal government, including the federal courts established under
Article III of the United States Constitution, ―can claim no powers which are not granted to it by the constitution,
and the powers actually granted, must be such as are expressly given, or given by necessary implication.‖ Martin v.
Hunter’s Lessee, 14 U.S. (1 Wheat) 304, 326 (1816). The Eleventh Amendment and its principle of sovereign
immunity ―is a constitutional limitation on the federal judicial power established in Art. III.‖ Pennhurst State
School & Hospital v. Halderman, 465 U.S. 89, 98 (1984). And it is abundantly clear to the Court that, because of
the Eleventh Amendment, it ―cannot enforce state law against a state official acting in his or her official capacity.‖
Kliesh v. Bucks County Domestic Rels., No. 04-4714, 2005 U.S. App. LEXIS 23445, *2 (3d Cir. Oct. 27, 2005) (per
curiam).

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The Eleventh Amendment provides that ―[t]he Judicial power of the United 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. 11. Although by its express terms this Amendment applies only to suits by
citizens of another state, it has long been established that the Eleventh Amendment also bars
suits against a state by one of its own citizens.2 See Hans v. Louisiana, 134 U.S. 1, 20 (1890).
―[A] district court [i]s barred by the Eleventh Amendment from ordering the state
officials to conform their conduct to state law.‖ Jones v. Connell, 833 F.2d 503, 505 (3d Cir.
1987) (citing Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984)); see also
Kliesh v. Bucks County Domestic Rels., No. 04-4714, 2005 U.S. App. LEXIS 23445, *2 (3d Cir.

―The States unquestionably . . . retain a significant measure of sovereign authority.‖ Garcia v. San Antonio
Metropolitan Transit Authority, 469 U.S. 528, 549 (1985) (internal quotation marks omitted); see also U.S. CONST.
AMEND. 10. The federal government and the fifty state governments work in a system of dual-sovereignty, and
―[n]either government may destroy the other nor curtail in any substantial manner the exercise of its powers.‖
Metcalf & Eddy v. Mitchell, 269 U.S. 514, 523 (1926). Perhaps the greatest and most significant measure of
sovereign authority is having the final say over the interpretation of the document from which the sovereign derives
its power. There may be no greater threat to that sovereign authority than a federal court mandating that a state
legislature abide by a federally-imposed interpretation of the very document from which that legislature derives its
existence and authority. See, e.g., Pennhurst State Sch. & Hosp., 465 U.S. at 106; see also Luther v. Borden, 48
U.S. (7 How) 1, 42 (1849) (refusing to decide the question of which of two competing governments was established
within a state). A sovereign state that does not have final say over the interpretation of its own founding document
is no sovereign at all.
The consent of state officials (through inadvertent waiver of a defense or otherwise) cannot enlarge the
powers of this Court. Moreover, courts consistently require ―that the State‘s consent be unequivocally expressed.‖
Pennhurst State Sch. and Hosp., 465 U.S. at 99. Simple failure to raise such an argument in its opening brief does
not satisfy this standard. For these reasons, the Court deems consideration of the Legislative Defendants‘ Eleventh
Amendment argument proper.
2

The Court notes that the Legislative Defendants, and not the State of New Jersey, are the moving parties. It cannot
be credibly argued, however, that the Legislative Defendants are not the ―State‖ for purposes of the Eleventh
Amendment. ―[A] suit may be barred by the Eleventh Amendment even though a State is not named a party to the
action, so long as the State is deemed to be the real party in interest.‖ Haybarger v. Lawrence County Adult Prob. &
Parole, 551 F.3d 193, 198 (3d Cir. 2008) (citing Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997)). In
the Third Circuit, ―several factors [are considered] in determining whether a suit against an entity is actually a suit
against the State itself, including: (1) the source of the money that would pay for the judgment; (2) the status of the
entity under state law; and (3) the entity‘s degree of autonomy.‖ Id. (citing Fitchik v. N.J. Transit Rail Operations,
Inc., 873 F.2d 655, 659 (3d Cir. 1989)). All three of these factors weigh in favor of recognizing the Legislative
Defendants as the ―State‖ for purposes of Eleventh Amendment sovereign immunity.

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Oct. 27, 2005) (per curiam) (―[A] federal court cannot enforce state law against a state official
acting in his or her official capacity.‖). The reason for this is simple:
A federal court‘s grant of relief against state officials on the basis of state law,
whether prospective or retroactive, does not vindicate the supreme authority of
federal law. On the contrary, it is difficult to think of a greater intrusion on state
sovereignty than when a federal court instructs state officials on how to conform
their conduct to state law. Such a result conflicts directly with the principles of
federalism that underlie the Eleventh Amendment.
Pennhurst State School & Hospital, 465 U.S. at 106. Because of these considerations, the Court
will follow the lead of the Court of Appeals for the Third Circuit‘s decision in Allegheny Cnty.
Sanitary Auth. v. E.P.A., 732 F.2d 1167 (3d Cir. 1984). In that case, the district court declined to
exercise pendant jurisdiction over the plaintiffs‘ state law claims after it had dismissed all of the
plaintiffs‘ federal claims. Id. at 1173. In affirming, the court held ―that the state law claims were
properly dismissed,‖ but unlike the district court, the Third Circuit ―base[d] [its] determination
on the Eleventh Amendment.‖ Id. This Court, therefore, will likewise base its determination on
Eleventh Amendment considerations. 3 Thus, the Plaintiff‘s state-law claims against the
Legislative Defendants are dismissed and the parties‘ other arguments need not be addressed.

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Even if, as Plaintiffs contend, the Legislative Defendants are subject to suit in state court because New Jersey state
legislative immunity doctrine applies only to individual legislators, this does not mean that the Legislative
Defendants have waived their Eleventh Amendment immunity in federal court. See Pennhurst State School &
Hospital, 465 U.S. at 100 n.9 (―[A] State‘s waiver of sovereign immunity in its own courts is not a waiver of
Eleventh Amendment immunity in the federal courts.‖ (citing Florida Dep’t of Health and Rehabilitative Servs. v.
Florida Nursing Home Ass’n, 450 U.S. 147, 150 (1981) (per curiam)).
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IV.

CONCLUSION

For the reasons stated above, the Legislative Defendants motion to dismiss is granted and
all claims against them are dismissed. An appropriate order will follow.

/s/ Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.

Date: December 12, 2011

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