By Harold S. Berman J.D.

Even after litigating through trial and an unfavorable verdict, the New Jersey State police could exercise sovereign immunity from a policeman’s ADA claim, ruled the New Jersey Supreme Court. However, the court reinstated the employee’s parallel failure-to-accommodate claim under the New Jersey Law Against Discrimination (NJLAD), which was supported by the same evidence, did not offer sovereign immunity, and had been improperly dismissed by the trial court. The state high court remanded to the trial court with instructions to enter judgment of $500,000 in favor of the policeman on the NJLAD claim (Royster v. New Jersey State Police, January 17, 2017, Solomon, L.).

Assignment didn’t accommodate medical condition. The employee, a former New Jersey State policeman, suffered from colitis, which required that he have immediate access to restroom facilities. After returning from medical leave to treat this condition, the employee was assigned to a crime unit that required him to conduct surveillance from a car. The state police kept him on surveillance duty for seven months, even though he repeatedly requested to be transferred to a position where he had access to a restroom.

Lawsuit. The employee filed suit against the state police, asserting, among other claims, that it failed to make reasonable accommodation for his medical condition in violation of the ADA and the NJLAD, and for retaliation under the ADA, NJLAD, and the New Jersey Conscientious Employee Protection Act (CEPA). The state trial court dismissed several claims, leaving only the CEPA retaliation and ADA failure-to-accommodate claim for trial. The jury awarded the employee $500,000 in damages on the ADA claim.

JNOV denied. The state then moved for judgment notwithstanding the verdict, asserting for the first time that the trial court lacked subject matter jurisdiction over the ADA claim because the police, as a state actor, enjoyed sovereign immunity. The employee countered that it was unfair to allow the police to raise a sovereign immunity defense after the jury’s verdict, and asked the trial court to retroactively convert the remaining ADA claim to an NJLAD claim since the claims and arguments under both statutes were identical. The trial court denied the employee’s request, and also denied the state police’s motion for JNOV, holding that the state police were estopped from asserting lack of jurisdiction after waiting over seven years and the completion of trial. The state police appealed, and the Appellate Division reversed, holding that because the state’s sovereign immunity extended to the state police, the sovereign immunity defense could be raised at any time, and the police had not waived sovereign immunity through its litigation conduct. The Supreme Court then granted the employee’s petition for certification, considering whether the state police were entitled to sovereign immunity on the policeman’s ADA claim, and whether it had waived that immunity.

Sovereign immunity for ADA claim not waived. The court could not nullify sovereign immunity for federal claims under the ADA, regardless of the state’s delay in raising the defense. The state police were an arm of the state, and because the state legislature had not consented to be sued under the ADA, the police enjoyed sovereign immunity from the ADA claim. Nor did the state police waive sovereign immunity through its litigation conduct. Although a state that is involuntarily brought into litigation in state court can waive its immunity by removing the case to federal court, New Jersey courts have never declared that the state may waive its immunity from suit in state court through litigation conduct. The court also found that the state police could not be estopped from raising its sovereign immunity defense, as it never misrepresented its status as a state actor, nor affirmatively represented that it planned to waive immunity simply by defending the claims against it.

NJLAD claim improperly dismissed. The court found that the employee’s NJLAD claim for failure to accommodate, under which the state police did not have sovereign immunity, was improperly dismissed. The trial court had found that a prima facie case under the two statutes were identical, yet separated the two claims when the state police moved for a directed verdict. The trial court then applied CEPA’s waiver provision to both the NJLAD retaliation and failure to accommodate claims. However, the CEPA waiver provision applied only to those causes of action requiring a finding of retaliatory conduct that would be actionable under CEPA. The CEPA waiver did not apply to the NJLAD claim, which was premised on different facts.

NJLAD claim reinstated. The NJLAD failure-to-accommodate claim was identical to the ADA claim. Because there was sufficient evidence to support the policeman’s ADA claim, the NJLAD claim should have survived the directed verdict motion. Although the employee had acquiesced to dismissal of the NJLAD claim, which was not precluded by sovereign immunity, the court could not ignore that the dismissal was mistaken. The state police’s belated assertion of sovereign immunity was not made in bad faith, but the interests of justice required reinstatement of the NJLAD failure to accommodate claim. Because the jury awarded $500,000 for the ADA failure to accommodate claim, the court found that it would have given the same award for the parallel NJLAD claim had it not been dismissed, and so remanded to the trial court to mold the jury’s ADA award into an NJLAD award.

Concurrence/dissent. One Justice concurred in the judgment, but believed that the state police’s litigation conduct did constitute a waiver of sovereign immunity and that holding that a state’s litigation conduct could constitute an exception to the sovereign immunity doctrine would be a reasonable adaptation of the common law.