(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 February 15, 2000 -- Decided April 13, 2000
STEIN, J., writing for a unanimous Court.
This interlocutory appeal requires the Supreme Court to decide whether Rutgers, the State University of
New Jersey, is a public agency for purposes of Rule 4:3-2(a)(the venue Rule). That Rule provides, in relevant part,
that lawsuits against public agencies be brought in the county where the cause of action arose.
Fine was an associate professor at the Rutgers-Newark campus. He sought promotion to the rank of
professor many times between 1986 and 1994. Each time, his application for a promotion was denied. Fine filed a
complaint against Rutgers in Bergen County in 1997, alleging violations of his due process rights, breach of the
collective bargaining agreement, and age discrimination. Rutgers removed the case to the United States District
Court, which granted Rutgers' motion to dismiss Fine's federal age discrimination suit as untimely. The District
Court remanded the remainder of the complaint to Bergen County.
In December 1998, Rutgers moved to change venue from Bergen to Essex County. In support, Rutgers
cited to the requirement in Rule 4:3-2(a) that actions not affecting real property instituted by or against “public
agencies” be brought in the county in which the cause arose. Rutgers noted that Fine worked at the University's
Newark campus, and that Newark was where most of the potential witnesses are employed and where most of the
relevant records and documents are maintained. The Law Division denied the motion. It cited to a Law Division
judgment holding that Rutgers was not a State entity for purposes of the New Jersey Contractual Liability Act, and a
judgment of this Court holding that the University of Medicine and Dentistry was not the alter ego of the State for
Eleventh Amendment purposes in an employment discrimination suit.
The Appellate Division denied Rutgers' motion for leave to appeal. The Supreme Court granted the
motion for leave to appeal.
HELD: The venue Rule applies to Rutgers in these circumstances, and venue is changed to Essex County.
1. In 1956, the Legislature enacted the Rutgers Law, which created a hybrid institution that was both private and
public. Rutgers has been considered a public agency by the courts for many purposes (the Tort Claims Act, the
common-law right to know, and exemption from local property taxation). Conversely, in other contexts, courts
have not accorded Rutgers the status of a state agency. Unless public status would frustrate the purposes of the
Rutgers charter or the primary purpose of the underlying law or Rule, Rutgers ordinarily should be considered an
instrumentality of the State. (Pp. 4-12)
2. Requiring Rutgers to defend this complaint in a county other than Essex undermines the purpose of Rule 4:3
2(a), which is to minimize inconvenience to public entity defendants. And, recognizing Rutgers' public status for
purposes of the venue Rule in this case would not frustrate the purpose of the Rutgers Law. (Pp. 12-14)
The order of the Law Division is REVERSED, and the mater is REMANDED to the Law Division, Essex
County, for further proceedings.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, COLEMAN, LONG, VERNIERO, and
LAVECCHIA join in JUSTICE STEIN's opinion.
SUPREME COURT OF NEW JERSEY
A-
28 September Term 1999
SEYMOUR H. FINE,
Plaintiff,
v.
RUTGERS, THE STATE UNIVERSITY
OF NEW JERSEY,
Defendant-Appellant.
Argued February 15, 2000-- Decided April 13, 2000
On appeal from the Superior Court, Law
Division, Bergen County.
Aron M. Schwartz argued the cause for
appellant (Greenbaum, Rowe, Smith, Ravin,
Davis & Himmel, attorneys).
STEIN, J.
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.See footnote 11
I
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.
II
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 full-fledged state agency, that:
a. The corporation and the university
shall be and continue to be given a high
degree of self-government and that the
government and conduct of the corporation
and the university shall be free of
partisanship; and
b. resources be and continue to be
provided and funds be and continue to be
appropriated by the state adequate for the
conduct of a state university with high
educational standards and to meet the cost
of increasing enrollment and the need for
proper facilities.
[60 N.J. at 157-58 (quoting N.J.S.A.
18A:65-27I)(emphasis added).]
The Court determined that Rutgers “as a public university for the
benefit of all the people of the state, was . . . a statewide
facility entitled to the same protection from local enactments as
the turnpike and the parkway, so long as it does not act
unreasonably or arbitrarily.” Id. at 158.
Rutgers is considered a public agency for purposes of other
statutes. For example, the Tort Claims Act provides:
The definition of “Public Entity” provided
in this section is intended to be all inclusive
and to apply uniformly throughout the State of
New Jersey to all entities exercising
governmental functions. . . . For the purposes
of establishing liability in the State of New
Jersey this definition is specifically intended
to include such entities as the New Jersey
Highway Authority and Turnpike Authority and
Rutgers the State University.
[N.J.S.A. 59:1-3, cmt.]
Similarly, records of Rutgers' expenditures for outside legal
counsel were held to be public common-law records in Keddie v.
Rutgers,
148 N.J. 36, 49-50 (1997). “A common-law record is one
that is made by a public official in the exercise of his or her
public function, either because the record was required or
directed by law to be made or kept, or because it was filed in a
public office.” Id. at 49. In Keddie, the plaintiffs sought
access to Rutgers' attorneys' bills and other legal documents.
The Appellate Division had ruled that Rutgers was a public body
covered by the Right-to-Know Law, N.J.S.A. 47:1A-1 to -4, and
that the documents requested must be produced under that law.
Keddie v. Rutgers,
286 N.J. Super. 285, 294 (App. Div. 1996).
This Court reversed the Appellate Division's determination that
the requested documents were covered under the Right-to-Know Law
because those documents were not required to be made, maintained
or kept on file. Keddie, supra, 148 N.J. at 48. However,
because the documents were created by “public officers in the
exercise of a public function” and were filed “in a public
office,” they qualified as common-law records. Id. at 50.
Therefore, any documents that satisfied the common-law balancing
of-interests test were to be made available to the plaintiffs.
Id. at 50-54.
In Rutgers v. Piscataway Township, 1 N.J. Tax 164 (1980),
the Tax Court determined that the Legislature intended to treat
Rutgers' property as the equivalent of state property, and
accordingly held that Rutgers qualified for an exemption from
local property taxation. Id. at 169-71. Similarly, in Rutgers
v. Grad Partnership,
269 N.J. Super. 142, 146, 149-51, certif.
denied, 135 N.J. 470 (1993), the Appellate Division held that
Rutgers is a state agency for the purposes of the doctrine of
nullum tempus occurrit regi (no time runs against the sovereign),
and therefore that Rutgers was not restricted in pursuing a claim
that otherwise would have been time barred. This Court also has
held that Rutgers is a “public sector” employer in collective
bargaining negotiations, and that accordingly Rutgers is required
to negotiate only certain terms and conditions of employment
because of its status as a “public sector” employer. Rutgers v.
Council of AAUP Chapters,
256 N.J. Super. 104, 114-15 (App. Div.
1992), aff'd o.b.
131 N.J. 118 (1993).
Conversely, in other contexts courts have not accorded
Rutgers the status of a state agency. In Rutgers v. Kugler, 110
N.J. Super. 424 (Law Div. 1970), aff'd o.b., 58 N.J. 113 (1971),
the Law Division held that public bidding statutes do not apply
to Rutgers because Rutgers was not subject to those statutes
before the enactment of the Rutgers Law. Id. at 428-429, 434.
In Briscoe, supra, the Law Division held that Rutgers is not a
state agency subject to the New Jersey Contractual Liability Act.
130 N.J. Super. at 506. The Contractual Liability Act explicitly
does not apply to a state agency “which is statutorily authorized
to sue and be sued.” N.J.S.A. 59:13-2. The Law Division viewed
the Rutgers Law “as an amendment to an existing charter for an
incorporated college.” Briscoe, supra, 130 N.J. Super. at 502.
Therefore, because Rutgers' pre-1956 charter included the power
to sue and be sued, and the Rutgers Law did not purport to alter
that authority, the Contractual Liability Act was held not to
apply to Rutgers. Id. at 505-06.
Other courts also have wrestled with questions pertaining to
Rutgers' “hybrid” status. In 1987 the Third Circuit held that
Rutgers is not entitled to Eleventh Amendment immunity under the
federal constitution. Kovats v. Rutgers,
822 F.2d 1303, 1312
(3rd Cir. 1987). Generally, the Eleventh Amendment provides
immunity to a “State” from suits filed by citizens in federal
courts. U.S. Const. amend. XI. In determining whether Rutgers
enjoyed such immunity, the Third Circuit considered whether the
potential payment of a judgment would come from the state
treasury, whether Rutgers performs a governmental function,
Rutgers' degree of autonomy, and whether Rutgers has the power to
sue and be sued. Kovats, supra, 822 F.
2d at 1307. The Third
Circuit concluded that “a majority of the relevant criteria weigh
against considering Rutgers an arm of the state entitled to
Eleventh Amendment immunity. . . . [I]t remains under state law
an independent entity able to direct its own actions and
responsible on its own judgments resulting from those actions.”
Id. at 1312.
Furthermore, because an entity that does not enjoy Eleventh
Amendment immunity is considered a “person” subject to suit under
42 U.S.C. §1983, Monell v. New York City Dept. of Social
Services,
436 U.S. 658, 690 n.55, 98 S. Ct. 2018, 2035 n.55,
56 L. Ed.2d 611, 635 n.55 (1978), the Third Circuit concluded that
Rutgers can be sued under the federal civil rights laws. Kovats,
supra, 822 F.
2d at 1312 n.10; see also Fuchilla, supra, 109 N.J.
at 330 (holding that University of Medicine and Dentistry of New
Jersey does not enjoy Eleventh Amendment immunity, and is a
“person” within meaning of section 1983).
In In re Executive Commission on Ethical Standards,
116 N.J. 216 (1989), the Court considered “whether a Rutgers law professor
conducting a clinical teaching program is to be regarded as a
'State employee' for purposes of the New Jersey Conflicts of
Interest Law.” Id. at 218. Third-year law students and recent
graduates, under the supervision of a Rutgers law professor,
represented clients before a state administrative agency, the
Council on Affordable Housing. Id. at 218-19. The Court
concluded “that a Rutgers University professor in a teaching
clinic . . . is not to be regarded as a State employee for
purposes of the conflicts-of-interest law.” Id. at 229. In
reaching that conclusion, Justice O'Hern observed that “the
absorption of Rutgers University within the framework of State
supported education has been marked by an overriding concern for
the academic freedom of one of the nation's oldest and greatest
universities.” Id. at 223. Focusing on the legislative intent
underlying the conflicts-of-interest law, the Court noted that
“it was undoubtedly not within the contemplation or intent of the
Legislature that the phrase, 'State employee,' under the New
Jersey Conflicts of Interest Law . . . apply to a university
professor supervising a constitutional law clinic.” Ibid.
“[I]t appears that whether or not a particular law is
applicable to Rutgers depends upon a consideration of both the
laws' general purposes, as well as the purposes of the Rutgers
Law.” Keddie, supra, 286 N.J. Super. at 293. These cases
suggest that the Rutgers Law created a public, but autonomous,
institution. Therefore, unless public status would “frustrate
the purposes of the Rutgers charter,” In re Executive Comm'n on
Ethical Standards, supra, 116 N.J. at 222, or the primary purpose
of the underlying law or Rule, Rutgers ordinarily should be
considered an “instrumentality of the State,” Keddie, supra, 148
N.J. at 41.
III
The rationale underlying Rule 4:3-2 is that the public
interest would be prejudiced if public officials were required to
defend lawsuits in distant venues. Sinderbrand v. Schuster,
170 N.J. Super. 506, 511 (Law Div. 1979)(“The public interest would
not be well served if the duties of public officials were
disrupted or left unattended while they were forced to defend
actions brought against them in distant counties which have
little or no connection with the conduct that forms the basis of
the suit.”). “More recent decisions have indicated that the
convenience of public bodies and officials is to be heavily
weighed when questions regarding venue are at issue.” Ibid.
Rutgers operates three campuses in New Jersey located in
Essex, Middlesex and Camden counties. In this matter, the cause
of action clearly arose in Essex County where Fine was employed
at the Rutgers-Newark campus for his entire career. Most of the
relevant witnesses and documents are located at the Rutgers
Newark campus. Requiring Rutgers to defend this complaint in a
county other than Essex, even one that is “an adjoining county to
the site of this dispute,” undermines the policies fostered by
Rule 4:3-2. The right of a litigant to choose his own forum is
required to yield to the venue Rule's objective of minimizing
inconveniences to public entity defendants.
Recognizing Rutgers' public status for purposes of the venue
Rule would not frustrate the purpose of the Rutgers Law. Nor
does it compromise Rutgers' autonomy to afford it the benefit of
the venue rule. To the contrary, Rutgers seeks recognition of
its status as a public agency for venue purposes to vindicate its
right to the same venue preference enjoyed by other public
entities. The rationale that precludes the attribution of public
agency status to Rutgers in section 1983 litigation or in
Contractual Liability Act litigation is inapplicable in this
context, in view of the purely procedural nature of the venue
Rule. Moreover, to apply the venue Rule to Rutgers in some types
of litigation but not in others would be awkward and logically
inconsistent.
IV
In our view, the purpose of Rule 4:3-2 would be undermined
if Rutgers were required to litigate this employment-related
claim outside of Essex County. Accordingly, we reverse the order
of the Law Division, Bergen County denying Rutgers' motion to
change venue and remand the matter to the Law Division, Essex
County, for further proceedings.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, COLEMAN, LONG,
VERNIERO, and LAVECCHIA join in JUSTICE STEIN's opinion.
NO. A-28 SEPTEMBER TERM 1999
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
SEYMOUR H. FINE,
Plaintiff,
v.
RUTGERS, THE STATE UNIVERSITY
OF NEW JERSEY,
Defendant-Appellant.
DECIDED April 13, 2000
Chief Justice Poritz PRESIDING
OPINION BY Justice Stein
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1 1 Fine did not appear or participate in the proceedings before this Court.