(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interests of brevity, portions of any opinion may not have been summarized).
Argued January 19, 2000 -- Decided March 2, 2000
PER CURIAM
The issue before the Court is whether Michael McDonnell, a New Jersey resident and former employee of
the State of Illinois at the New Jersey field office of the Illinois Department of Revenue (IDOR), may sue the State of
Illinois in a New Jersey court for age discrimination under the New Jersey Law Against Discrimination (LAD).
McConnell was hired by the IDOR in November 28, 1988 to work in its regional field office in Paramus,
New Jersey. About a year after he began his employment with IDOR, McDonnell received a promotion. He never
received another promotion, which he claimed was a result of age discrimination. McDonnell was terminated from
his position on August 10, 1993 at the age of fifty-two.
McDonnell filed a complaint alleging age discrimination against the State of Illinois and certain supervisory
personnel who were either New Jersey or Illinois residents. McDonnell sought relief for the following: 1) alleged
violations of the IDOR Employee Handbook Grievance Procedure; 2) intentional infliction of emotional distress; 3)
negligence; and 4) violations of the Employer Retirement Income Security Act (ERISA).
Defendants moved to dismiss all counts of the complaint for lack of subject matter jurisdiction and,
alternatively, for summary judgment on the emotional distress and negligence claims. That motion was denied. On
defendants' motion for reconsideration, the court dismissed McDonnell's complaint finding that: 1) Illinois law
applied; 2) New Jersey did not have jurisdiction; 3) the LAD did not apply to the State of Illinois; 4) McDonnell
failed to comply with the notice provisions of the New Jersey Tort Claims Act; 5) McDonnell failed to present
evidence to support a claim for intentional infliction of emotional distress; and 6) an ERISA claim must be brought
in federal court and, therefore, the court lacked jurisdiction over that claim.
McDonnell appealed to the Appellate Division, which affirmed in part and reversed in part. The court
found that the New Jersey court has personal jurisdiction over the Illinois defendants and the State of Illinois because
of the clear minimum contacts with this State. The court also found that sovereign immunity did not bar New Jersey
courts from exercising personal jurisdiction over the State of Illinois.
The Appellate Division then addressed whether the doctrine of comity would prohibit New Jersey from
exercising jurisdiction. To make that determination, the court looked at the public policy of both states. The court
reasoned that both states have a strong public policy against discrimination. The Illinois statute, known as the
Illinois Human Rights Act (HRA), prohibits discrimination in employment. However, the Appellate Division found
that, in view of the clear language of the statute, as well as its stated purpose, the Illinois Legislature intended that in
this context, the HRA should apply only to Illinois residents who work for employers within the State of Illinois.
Thus, although Illinois has a strong public policy against discrimination, the HRA does not apply to McDonnell.
The court noted that the LAD is to be liberally construed and that, in the area of employment discrimination, should
apply to another state operating within this State's borders and employing this State's residents. To construe the
LAD otherwise would be irrational and expressly contrary to the purposes of the statute. Thus, the Appellate
Division concluded that, when considering the public policies of New Jersey and Illinois in these circumstances,
principles of comity do not require that New Jersey decline jurisdiction over Illinois. This State's strong policy
against discrimination and the lack of an available remedy to McConnell under Illinois law compels that New Jersey
exercise jurisdiction here.
In determining the appropriate choice of law, the Appellate Division noted that McDonnell is a New Jersey
resident, the basis of his claims arose in New Jersey, three of the defendants live in New Jersey, and Illinois
maintains an office in New Jersey. Based on those factors, the panel determined that New Jersey has the more
significant relationship to the parties and the litigation. Therefore, the Appellate Division held that New Jersey law
is the appropriate law to apply to McDonnell's viable claims.
Based on its conclusion that New Jersey has jurisdiction and that New Jersey law applies, the Appellate
Division reversed the dismissal of McDonnell's LAD claim as well as the dismissal of the claim for alleged
violations of the IDOR Employee Handbook Grievance Procedure.
The Appellate Division also found that the trial judge erroneously concluded that McDonnell failed to
comply with the notice provisions of the Tort Claims Act since claims of discrimination are not subject to the notice
requirements of the Act. The court affirmed the dismissal of the negligence, intentional infliction of emotional
distress, and ERISA claims.
The Supreme Court granted certification.
HELD: The judgment of the Appellate Division is affirmed substantially for the reasons expressed by Judge
Braithwaite in his written opinion. A New Jersey resident and former employee of the State of Illinois
employed by the State of Illinois to work in a New Jersey field office may sue the State of Illinois in a New
Jersey court for age discrimination under the LAD.
1. The Eleventh Amendment 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. (pp. 1-4)
2. Certain provisions of the HRA suggest that McDonnell could have asserted a cause of action under that statute,
subject to the limitation that the claim be filed only before the Illinois Human Rights Commission, and that monetary
damages are limited to actual damages for injury of loss, back pay, and attorneys' fees. Nevertheless, because the
HRA requires discrimination claims to be filed within 180 days of when a claimant discovers his or her injury,
McDonnell would have had no remedy under the HRA as his claim would have been time barred. (pp. 4-5)
3. The Appellate Division's determination not to apply comity was based on: the unavailability of redress for
McDonnell under the HRA; the conclusion that the LAD applied to the Illinois defendants; its conclusion 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. These reasons argue persuasively
against dismissing McDonnell's suit on comity grounds. Nor would the refusal to apply comity be disruptive to
Illinois' revenue collection activity. Illinois is free to continue to collect tax revenues from New Jersey sources so
long as it does not violate the LAD by discriminating against employees who live in New Jersey. On remand, the
award of reinstatement is expressly precluded in order not to affront Illinois sovereignty. (pp. 5-9)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, GARIBALDI, STEIN, COLEMAN, LONG
and VERNIERO join in this PER CURIAM opinion.
SUPREME COURT OF NEW JERSEY
A-
118 September Term 1998
MICHAEL J. MCDONNELL,
Plaintiff-Respondent,
v.
STATE OF ILLINOIS; STATE OF
ILLINOIS, DEPARTMENT OF
REVENUE; SAMUEL MCGAW;
MICHAEL SCADUTO; JOE
BARTLETTI; JUAN MORALES;
FRANK NUGNES; and BRIAN
MCGRAIL,
Defendants-Appellants.
Argued January 19, 2000-- Decided March 2, 2000
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at
319 N.J. Super. 324 (1999).
Joel D. Bertocchi, Solicitor General of
Illinois, a member of the Illinois bar, and
Stephen E. Klausner argued the cause for
appellants (Klausner, Hunter & Rosenberg,
attorneys; Mr. Klausner and David L.
Rosenberg, of counsel and on the brief).
Michael J. McDonnell argued the cause pro
se.
PER CURIAM
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 policies expressed by our
Court of Claims Act and not inconsistent with
policies in our State constitution to honor
Indiana's reservation of sovereign immunity.
[Id. at 288.]
Our courts' precedents on the applicability of comity focus
on an evaluation of the laws and policies of New Jersey and those
of the affected state. City of Philadelphia v. Austin,
86 N.J. 55, 64 (1981); Baldwin Enterprises, Inc. v. Town of Warwick,
N.Y.,
226 N.J. Super. 549, 553 (App. Div. 1988). Decisions by
other state courts to extend comity to a sister state often
reflect a determination that the recognition of the sister
state's immunity would not offend the policies of the forum
state. See, e.g., University of Iowa Press v. Urrea,
440 S.E.2d 203 (Ga. Ct. App. 1993) (recognizing Iowa's sovereign immunity
under Iowa Tort Claims Act as a matter of comity does not offend
public policy of Georgia whose Statutes accord comparable
immunity to Georgia public entities); Reed v. University of North
Dakota,
543 N.W.2d 106 (Minn. Ct. App. 1996) (holding that
recognition of North Dakota's sovereign immunity law would not
offend public policies of Minnesota); Hawsey, III v. Louisiana
Dep't of Social Servs.,
934 S.W.2d 723 (Tex. App. 1996)
(dismissing plaintiffs libel and false imprisonment suit on
comity grounds and noting similarity between Texas and Louisiana
sovereign immunity provisions); Jackett v. Los Angeles Dep't of
Water & Power,
771 P.2d 1074 (Utah Ct. App. 1989) (dismissing
plaintiff's tort action on comity grounds and emphasizing
congruity of Utah and California sovereign immunity statutes).
Courts that have declined to extend comity to sister states
have stressed the fact that the forum state's law would not
provide its own state with such immunity, or that the forum
state's policies would be disserved by a recognition of comity.
See Head v. Platte County, Missouri,
749 P.2d 6, 10 (Kan. 1988)
(declining to extend immunity to Missouri under comity principles
because to do so would result in granting greater immunity to
our sister state than the immunity which our citizens through the
legislature have bestowed upon our state government); Ehrlich
Bober & Co., Inc. v. University of Houston,
404 N.E.2d 726, 730
(N.Y. 1980) (declining to afford comity based on Texas
institution's assertion of sovereign immunity because suit was
based on commercial transaction that occurred primarily in New
York and New York's interest naturally embraces a very strong
policy of assuring access to a forum for redress of injuries
arising out of transactions spawned here); Morrison v. Budget
Rent A Car Systems, Inc.
657 N.Y.S.2d 721 (N.Y. App. Div. 1997)
(declining to apply comity and recognize immunity under South
Carolina Tort Claims Act where New York law would not extend
immunity to New York in comparable circumstances).
Illinois contends that our refusal to apply comity and
dismiss plaintiff's suit against the Illinois defendants would be
disruptive to Illinois' revenue collection activity, a basic
state governmental function. We perceive no such disruption.
Illinois is free to continue to collect tax revenue due to it
from New Jersey sources provided it does so without
discriminating against employees who live in New Jersey in
violation of the LAD. We acknowledge the possibility that the
remedy of reinstatement authorized by the LAD, N.J.S.A. 10:5-17
might constitute an affront to Illinois' sovereignty and we
expressly preclude the award of reinstatement on remand. In all
other respects, we are persuaded that the Appellate Division's
refusal to extend comity to Illinois and to remand plaintiff's
suit to the Law Division for trial constitutes the appropriate
disposition of this appeal.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, GARIBALDI, STEIN, COLEMAN, LONG, and VERNIERO join in this opinion.
NO. A-118 SEPTEMBER TERM 1998
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
MICHAEL J. MCDONNELL,
Plaintiff-Respondent,
v.
STATE OF ILLINOIS; STATE OF ILLINOIS,
DEPARTMENT OF REVENUE; SAMUEL
MCGAW; MICHAEL SCADUTO; JOE
BARTLETTI; JUAN MORALES; FRANK
NUGNES; and BRIAN MCGRAIL,
Defendants-Appellants.
DECIDED March 2, 2000
Chief Justice Poritz PRESIDING
OPINION BY PER CURIAM
CONCURRING OPINION BY
DISSENTING OPINION BY