sovereign immunity in New Jersey

2014Prot., 152 N.J. 137, 144 , 703 A.2d 927 (1997). 7 The TCA was enacted in 1972 “in response to mounting judicial disfavor with the doctrine of sovereign immunity.” Rochinsky v. State, Dep’t of Transp., 110 N.J. 399, 404 , 541 A.2d 1029 (1988). 8 One cannot reasonably suggest that the Spill Act and the TCA were “designed to serve the same purpose and objective.” Marino, supra, 200 N.J. at 331 , 981 A.2d 855 .

2014Prot., 152 N.J. 137, 144 , 703 A.2d 927 (1997). 7 The TCA was enacted in 1972 “in response to mounting judicial disfavor with the doctrine of sovereign immunity.” Rochinsky v. State, Dep’t of Transp., 110 N.J. 399, 404 , 541 A.2d 1029 (1988). 8 One cannot reasonably suggest that the Spill Act and the TCA were “designed to serve the same purpose and objective.” Marino, supra, 200 N.J. at 331 , 981 A.2d 855 .

2025See Tice, 133 N.J. at 355 ("The liability of the public entity must be found in the Act . . . ."); see also Kolitch v. Lindedahl, 100 N.J. 485, 502 (1985) (Handler, J., dissenting) (explaining a plaintiff bringing a negligence action against a public entity "must first establish the predicates for liability, and later avoid application of any provision granting the sovereign immunity"); Troth, 117 N.J. at 276-77 (O'Hern, J., concurring).

2025Again, individuals asserting claims against a public entity "must first establish the predicates for liability" in the TCA "and later avoid application of any provision granting the sovereign immunity." Kolitch, 100 N.J. at 502 (Handler, J., dissenting).

2025See N.J.S.A. 59:1-2 (explaining that "public entities shall only be liable for their negligence within the limitations of [the TC Act] and in accordance with the fair and uniform principles established" in the TC Act). "[G]enerally, immunity for public entities is the rule and liability is A-1763-24 8 the exception." McDade v. Siazon, 208 N.J. 463, 474 (2011) (quoting Fluehr v. City of Cape May, 159 N.J. 532, 539 (1999)).

2025See N.J.S.A. 59:1-2 (explaining that "public entities shall only be liable for their negligence within the limitations of [the TC Act] and in accordance with the fair and uniform principles established" in the TC Act). "[G]enerally, immunity for public entities is the rule and liability is the exception." McDade v. Siazon, 208 N.J. 463, 474 (2011) (quoting Fluehr v. City of Cape May, 159 N.J. 532, 539 (1999)).

2017"The Legislature enacted the [TCA] to afford circumscribed relief from the doctrine of sovereign immunity." McDade, supra, 208 N.J. at 474 .

2017"The Legislature enacted the [TCA] to afford circumscribed relief from the doctrine of sovereign immunity." McDade, supra, 208 N.J. at 474 .

2017A. We begin our review by examining sovereign immunity jurisprudence and how the sovereign immunity defense may be waived through the State’s litigation conduct. “[A]s the Constitution’s structure, and its history, and the authoritative interpretations by [the United States Supreme] Court make clear, the States’ immunity from suit is a fundamental aspect of the[ir] sovereignty . . . .”4 Alden v. Maine, 527 U.S. 706, 713 , 119 S. Ct. 2240, 2246 , 144 L.

2017A. We begin our review by examining sovereign immunity jurisprudence and how the sovereign immunity defense may be waived through the State’s litigation conduct. “[A]s the Constitution’s structure, and its history, and the authoritative interpretations by [the United States Supreme] Court make clear, the States’ immunity from suit is a fundamental aspect of the[ir] sovereignty . . . .”4 Alden v. Maine, 527 U.S. 706, 713 , 119 S. Ct. 2240, 2246 , 144 L.

2025The TCA was enacted in 1972 in response to the Court's abrogation of the State's sovereign immunity to tort claims in Willis v. Department of Conservation and Economic Development, 55 N.J. 534 (1970).

2024Enacted in 1972 in twelve chapters after extended study in response to the Court's abrogation of the State's sovereign immunity to tort claims in Willis v. Department of Conservation and Economic Development, 55 N.J. 534 (1970), it reestablished "sovereign immunity in a manner consistent with the proposals contained in the 1972 Attorney General's Task Force Report." Velez v. City of Jersey City, 180 N.J. 284, 289 (2004).

2015Orange v. Palmer, 47 N.J. 307, 327 (1966) (noting that, as to a sovereign immunity defense, the Court would "treat the question as if the suit directed against the two State officers were against the State itself").

1968The municipalities contend that a tax sale to enforce a lien which remains on state-acquired lands until payment ( N.J.S.A. 54:5-6, City of East Orange v. Palmer, 47 N.J., at p. 330 ) is not a suit, so the doctrine of sovereign immunity expressed in Transcontinental Gas Pipe Line Corp. v. Department of Conservation, supra, is irrelevant.

2010See Manna v. State, 129 N.J. 341, 346 , 609 A.2d 757 (1992).

2010See Manna v. State, 129 N.J. 341, 346 , 609 A.2d 757 (1992).

2025The TCA reestablished "sovereign immunity in a manner consistent with the proposals contained in the 1972 Attorney General's Task Force Report on Sovereign A-2980-23 16 Immunity." Velez v. City of Jersey City, 180 N.J. 284, 289 (2004).

2024Enacted in 1972 in twelve chapters after extended study in response to the Court's abrogation of the State's sovereign immunity to tort claims in Willis v. Department of Conservation and Economic Development, 55 N.J. 534 (1970), it reestablished "sovereign immunity in a manner consistent with the proposals contained in the 1972 Attorney General's Task Force Report." Velez v. City of Jersey City, 180 N.J. 284, 289 (2004).

2025See Tice, 133 N.J. at 355 ("The liability of the public entity must be found in the Act . . . ."); see also Kolitch v. Lindedahl, 100 N.J. 485, 502 (1985) (Handler, J., dissenting) (explaining a plaintiff bringing a negligence action against a public entity "must first establish the predicates for liability, and later avoid application of any provision granting the sovereign immunity"); Troth, 117 N.J. at 276-77 (O'Hern, J., concurring).

2024A-0366-22 62 Kolitch, 100 N.J. at 502 (Handler J., dissenting) (explaining a plaintiff bringing a negligence action against a public entity "must first establish the predicates for liability, and later avoid application of any provision granting the sovereign immunity"); Troth, 117 N.J. at 276-77 (O'Hern J., concurring) (same).

2023The TCA was “designed to reestablish the immunity of public entities while relieving some of the harsh results of the doctrine of sovereign immunity.” Alston v. City of Camden, 168 N.J. 170, 176 (2001) (quotation omitted).

2017The TCA was "designed to reestablish the immunity 9 A-0220-15T2 of public entities while relieving some of the harsh results of the doctrine of sovereign immunity." Alston v. City of Camden, 168 N.J. 170, 176 (2001) (citation omitted).

2017Allen v. Fauver, 167 N.J. 69, 74 (2001).

2017New Jersey has “long recognized that an essential and fundamental aspect of sovereignty is freedom from suit by private citizens for money judgments absent the State’s consent.” Allen v. Fauver, 167 N.J. 69, 73-74 , 768 A.2d 1055 (2001).

2016The Legislature 10 A-1679-14T4 enacted the Act in recognition of "the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity," while still recognizing that government — which cannot abstain from its obligation to govern in the way a private actor can choose not to engage in certain conduct — "should not have the duty to do everything that might be done." N.J.S.A. 59:1-2; Lopez v. City of Elizabeth, 245 N.J.

2016The Legislature 10 A-1679-14T4 enacted the Act in recognition of "the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity," while still recognizing that government — which cannot abstain from its obligation to govern in the way a private actor can choose not to engage in certain conduct — "should not have the duty to do everything that might be done." N.J.S.A. 59:1-2; Lopez v. City of Elizabeth, 245 N.J.

2024"The guiding principle of the [TCA] is that 'immunity from tort liability is the general rule and liability is the exception." Coyne v. State, Dep't of Transp., 182 N.J. 481, 488 (2005) (quoting Garrison v. Twp. of Middletown, 154 N.J. 282, 286 (1998)).

2019The Act's "guiding principle" is "that immunity from tort liability is the general rule and liability is the exception." D.D. , 213 N.J. at 134 , 61 A.3d 906 (internal quotation marks omitted) (quoting Coyne v. DOT , 182 N.J. 481 , 488, 867 A.2d 1159 (2005) ).

2024"The guiding principle of the [TCA] is that 'immunity from tort liability is the general rule and liability is the exception." Coyne v. State, Dep't of Transp., 182 N.J. 481, 488 (2005) (quoting Garrison v. Twp. of Middletown, 154 N.J. 282, 286 (1998)).

2004Garrison v. Tp. of Middletown, 154 N.J. 282, 286 , 712 A. 2d 1101 (1998); Rochinsky v. State, Dep't of Transp., 110 N.J. 399, 407-08 , 541 A. 2d 1029 (1988).

2025The Supreme Court of the United States has recognized “that municipalities, unlike States, do not enjoy a constitutionally protected immunity from suit,” Jinks v. Richland County, 538 U.S. 456, 466 (2003), and neither the FLS nor any other substantive law in New Jersey has immunized municipalities from FLS liability for filing frivolous pleadings like the Borough was found to have filed here.

2025The Supreme Court of the United States has recognized “that municipalities, unlike States, do not enjoy a constitutionally protected immunity from suit,” Jinks v. Richland County, 538 U.S. 456, 466 (2003), and neither the FLS nor any other substantive law in New Jersey has immunized municipalities from FLS liability for filing frivolous pleadings like the Borough was found to have filed here.

2025See Tice, 133 N.J. at 355 ("The liability of the public entity must be found in the Act . . . ."); see also Kolitch v. Lindedahl, 100 N.J. 485, 502 (1985) (Handler, J., dissenting) (explaining a plaintiff bringing a negligence action against a public entity "must first establish the predicates for liability, and later avoid application of any provision granting the sovereign immunity"); Troth, 117 N.J. at 276-77 (O'Hern, J., concurring).

2022It does not, and likely cannot, see Winberry v. Salisbury, 5 N.J. 240, 243-48 (1950), and Rosenberg v. Town of N. Bergen, 61 N.J. 190 , A-0033-21 18 199-200 (1972), authorize judges to alter statutory deadlines for asserting claims, particularly where, as in the case of the TCA, the Legislature has set clearly defined terms for the waiver of the State's sovereign immunity.

2018See Lewis v. Mutond , 258 F.Supp.3d 168 (D.D.C. 2017) ; Fed.

2018Cir. 2013) (noting that when the State Department grants a request for an SOI, the court surrenders its jurisdiction); Habyarimana v. Kagame , 696 F.3d 1029 , 1032 (10th Cir. 2012) ("For more than 160 years American courts have consistently applied the doctrine of sovereign immunity when requested to do so by the [E]xecutive branch ... with no further review of the [E]xecutive's determination."); Yousuf v. Samantar , 699 F.3d 763 , 773 (4th Cir. 2012) (finding that the State Department's determination regarding conduct-based immunity is not controlling, but carries "substantial weight" in the

2018See ibid. ("The Legislature recognizes the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity.