2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-2-2010

State Troopers Non-Comm Office v. State of NJ

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3296

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 09-3296

_____________

STATE TROOPERS NON-COMMISSIONED OFFICERS

ASSOCIATION OF NEW JERSEY, 

on behalf of its members, 

and all other persons similarly situated but un-named; 

STATE TROOPERS SUPERIOR OFFICERS 

ASSOCIATION OF NEW JERSEY, 

 Appellants

v.

STATE OF NEW JERSEY, 

Office of the Attorney General; 

ANNE MILGRAM, 

Attorney General of the State of New Jersey; 

STATE OF NEW JERSEY, Division of State Police 

_____________

 

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 3-08-cv-05326)

District Judge: Honorable Freda L. Wolfson

_____________

Argued October 26, 2010

Before: McKEE, Chief Judge, SLOVITER and RENDELL, Circuit Judges.

(Opinion Filed November 2, 2010) 

_____________

Michael A. Bukosky, Esq. [ARGUED]

Loccke, Correia, Schlager, Limsky & Bukosky

24 Salem Street

Hackensack, NJ 07601

 Counsel for Appellants
2

Robert H. Stoloff, Esq. [ARGUED]

Office of Attorney General of New Jersey

Department of Law & Public Safety

CN112

Richard J. Hughes Justice Complex

Trenton, NJ 08625

_____________

OPINION OF THE COURT

_____________ 

RENDELL, Circuit Judge.

Plaintiffs, twenty-one New Jersey State Troopers,1appeal the District Court for the 

District of New Jersey‟s grant of New Jersey Attorney General Anne Milgram‟s Motion 

to Dismiss pursuant to Rule 12(b)(6).2 Fed. R. Civ. P. 12(b)(6). We will affirm.

The District Court had jurisdiction over this action under 28 U.S.C. § 1331. We have 

appellate jurisdiction pursuant to 28 U.S.C. § 1291. 

I. Background 

Because we write solely for the benefit of the parties, we recite only the facts relevant 

to our analysis. Plaintiffs, who are primarily employed by the New Jersey Division of 

State Police (“NJDSP”) as State Troopers, are licensed attorneys; many of them earned 

law degrees during their employment as State Troopers, aided by a state-sponsored loan 

 

1

For simplicity‟s sake, “plaintiffs” will be used to refer to the twenty-one interested 

State Troopers. The named plaintiffs in this case are the collective bargaining agents 

who filed suit on the Troopers‟ behalf. 

2

Plaintiffs‟ complaint named the State of New Jersey, the Office of the Attorney 

General, the New Jersey Division of State Police, and New Jersey Attorney General 

Anne Milgram as defendants. The only remaining defendant on appeal is the Attorney 

General. 
3

repayment policy. Plaintiffs averred that, pursuant to this policy, the NJDSP arranged for 

New Jersey to pay for part of the Troopers‟ law school tuition. After receiving their law 

degrees, plaintiffs engaged in secondary employment as lawyers. Outside of their jobs as 

Troopers, they earned extra money performing legal tasks such as drafting wills and 

assisting in real estate closings. 

Before 2007, the New Jersey Code of Ethics (“the Code”) and the NJDSP 

Standard Operating Procedure Manual permitted NJDSP employees, including State 

Troopers, to engage in the private practice of law with the Attorney General‟s approval. 

In 2007, the State Ethics Commission for the Department of Law and Public Safety 

(“DLPS”) enacted a revised Code of Ethics. Section VI(E) of the revised Code 

essentially prohibits all DLPS employees from engaging in the private practice of law in 

New Jersey or in any other jurisdiction in which they are admitted.3In their complaint, 

plaintiffs challenged the Code‟s prohibition of Troopers‟ outside legal employment on 

several grounds, claiming violations of the Equal Protection component of the Fourteenth 

Amendment, the procedural due process component of the Fourteenth Amendment‟s Due 

Process Clause, and the Due Process and Equal Protection provisions of the New Jersey 

Constitution. Further, plaintiffs asserted claims of promissory estoppel, equitable 

estoppel, and impairment of their right to contract. The District Court concluded, in a 

 

3

The provision provides for two exceptions to this general prohibition. With the 

Attorney General‟s approval, legally licensed DLPS employees may practice law in 

circumstances where: (1) the representation is without compensation, for a member of 

the attorney‟s immediate family, and of a non-adversarial nature; or (2) the representation 

was commenced before the new Code was implemented and is limited to winding up the 

preexisting professional obligation.
4

well-reasoned opinion, that plaintiffs‟ complaint failed to state a claim on which relief 

could be granted.4 

On appeal, plaintiffs challenge only the District Court‟s dismissal of their Equal 

Protection and Procedural Due Process claims for injunctive relief against Attorney 

General Anne Milgram. We exercise de novo review over the District Court‟s decision to 

dismiss the complaint for failure to state a claim. Dique v. N.J. State Police, 603 F.3d 

181, 188 (3d Cir. 2010). To withstand a Rule 12(b)(6) motion to dismiss, “a complaint 

must contain sufficient factual matter, accepted as true, to „state a claim to relief that is 

plausible on its face.‟” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell 

Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). 

II. Discussion

a. Equal Protection

The Equal Protection Clause “is essentially a direction that all persons similarly 

situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 

432, 440 (1985). In reviewing an Equal Protection challenge, we begin by asking 

whether the alleged state action burdens a fundamental constitutional right or targets a 

suspect class. See Doe v. Pa. Bd. of Prob. & Parole, 513 F.3d 95, 107 (3d Cir. 2008). If 

 

4

The District Court dismissed plaintiffs‟ state law claims and their constitutional 

claims against the state itself on sovereign immunity grounds. Under the Eleventh 

Amendment, states and state agencies are immune from suit in federal court. See Lavia v. 

Pa. Dep’t of Corr., 224 F.3d 190, 195 (3d Cir. 2000). The Eleventh Amendment also

prohibits a federal court from considering a claim that a state official violated state law in 

carrying out his or her official responsibilities. See Pennhurst State Sch. v. Halderman, 

465 U.S. 89, 104 (1984). However, the Eleventh Amendment does not preclude plaintiffs 

from bringing suit for injunctive relief against a state official. See Ex Parte Young, 209 

U.S. 123 (1908). 
5

it does not, the classification created by the challenged statute or regulation “does not 

violate equal protection so long as it bears a rational relationship to some legitimate end.” 

Id. Plaintiffs do not allege that Section VI(E) of the Code burdens a fundamental right or 

targets a suspect class, so rational basis review applies to their claim. Given this highly 

deferential standard,

5 we agree with the District Court that plaintiffs‟ Equal Protection 

challenge must fail. 

First, the District Court properly concluded that New Jersey‟s interests in guarding 

against potential conflicts of interest and preserving the public trust are legitimate 

governmental ends. Several courts have recognized the government‟s interest in 

preserving public trust as a legitimate objective underlying restrictions on secondary 

employment. See, e.g., Decker v. City of Hampton, Va., 741 F. Supp. 1223, 1226 (E.D. 

Va. 1990); Fort Wayne Patrolmen’s Benevolent Ass’n v. City of Fort Wayne, 625 F. 

Supp. 722, 731 (N.D. Ind. 1986). 

Second, the District Court properly concluded that the state‟s decision to single 

out the legal profession is rationally related to its ethical concerns. The Code provision 

prohibiting Troopers from outside legal practice is far from perfectly crafted. It is 

simultaneously overinclusive – in that it prohibits all part-time legal work – and 

underinclusive – in that DLPS employees are still permitted to engage in non-legal

outside employment where the risk of ethical conflict is high. Nonetheless, the District 

 

5

See Romer v. Evans, 517 U.S. 620, 632 (1996) (noting that under rational basis 

review, “a law will be sustained if it can be said to advance a legitimate government 

interest, even if the law seems unwise or works to the disadvantage of a particular group, 

or if the rationale for it seems tenuous.”). 
6

Court did not err in concluding that the provision withstands rational basis review. 

“„Even if the classification involved . . . is to some extent both underinclusive and 

overinclusive, and hence the line drawn by [the legislature] imperfect, it is nevertheless 

the rule that . . . perfection is by no means required.” Doe, 513 F.3d at 117-18 (quoting 

Vance v. Bradley, 440 U.S. 93, 108 (1979) (internal citations omitted)). We are 

sympathetic to plaintiffs‟ objection to the breadth of Section VI(E)‟s prohibition. 

However, plaintiffs have not demonstrated, as they must to overcome rational basis 

review, that no “„reasonably conceivable state of facts‟” could support a rational basis for 

the revised Code‟s classification. Donatelli v. Mitchell, 2 F.3d 508, 513 (quoting FCC v. 

Beach Commc’ns, 508 U.S. 307, 313 (1993)). 

b. Due Process

To properly allege a claim for violation of procedural due process, plaintiffs were 

required to aver that (1) they were deprived of an individual interest encompassed by the 

Fourteenth Amendment‟s protection of life, liberty, or property; and (2) that the 

procedures available did not provide due process of the law. Hill v. Borough of 

Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006). We need not reach the question of 

available procedures, because plaintiffs fail to allege a property interest in their use of 

their law degrees in connection with secondary employment as lawyers. 

The Fourteenth Amendment‟s procedural due process component does not protect 

every benefit in which employees claim an interest. To establish a protectable property 

interest, a plaintiff must show “more than an abstract need or desire for it. He must have 

more than unilateral expectation of it. He must, instead, have a legitimate claim of 
7

entitlement to it.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). 

Entitlements may be created expressly by state laws or regulations or may arise from 

government policy or a “mutually explicit understanding between a government 

employer and employee.” Carter v. City of Philadelphia, 989 F.2d 117, 120 (3d Cir. 

1993). “Longevity alone” does not create a property interest. Hadley v. Cty. of DuPage, 

715 F.2d 1238, 1244 (7th Cir. 1983). 

The District Court properly rejected plaintiffs‟ alleged property interest in 

secondary employment as lawyers. It focused on the absence of evidence that the state 

openly encouraged the Troopers to attend law school for the purpose of attaining 

secondary employment as lawyers. Further, it reasoned that the combination of the pre2007 ethics Code, which merely permitted plaintiffs to engage in outside legal 

employment, and a general education subsidy from the state that plaintiffs used to go to 

law school was not enough to give rise to a legitimate entitlement to secondary legal 

employment.6 

Plaintiffs also claim that the District Court mischaracterized their property interest, 

urging that the revised Code wholly deprived them of the ability to practice law, not just 

 

6 This case is distinguishable from Stana v. Sch. Dist. of City of Pittsburgh, 775 F.2d 

122 (3d Cir. 1985), where we found that a teaching applicant had a constitutional 

property interest in remaining on an eligibility list, where retention on the list was a 

prerequisite for placement in a teaching position. We explained that a property interest 

was created by the combination of the School District‟s hiring policies and specific, 

explicit assurances from school officials that a person placed on the list would not be 

removed for four years. Here, by contrast, there is no allegation that the State Troopers 

received assurances that they would be permitted to engage in secondary legal 

employment indefinitely if they attained their law degrees. 
8

of the ability to engage in secondary legal employment. However, the Code only 

prohibited the plaintiffs from practicing law while they were employed as State Troopers,

so this argument lacks merit. Plaintiffs retained their right to practice law; they just could 

not be Troopers while doing so. The District Court properly analyzed plaintiffs‟ alleged 

property interest as an interest in secondary employment and came to the conclusion, 

which we will not disturb, that plaintiffs‟ property interest was not constitutionally 

cognizable for purposes of the Due Process Clause. 

Accordingly, we will affirm the District Court‟s dismissal of the State Troopers‟ 

complaint.