Petition for Writ of Certiorari — Alden v. Maine

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Sepreme Court,

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—_—_—_—_—_—_—_—_—_—_————————— ae eee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

JoHN H. ALDEN, et al.,

: Petitioners,

STATE OF MAINE,

Respondent.

On Petition for a Writ of Certiorari to the

Maine Supreme Judicial Court

PETITION FOR A WRIT OF CERTIORARI

JONATHAN P. HIATT

LARRY ENGELSTEIN

815 16th Street, N.W.

Washington, D.C. 20006

DONALD F.. FONTAINE

482 Congress Street

Portland, Maine 04112

TIMOTHY L. BELCHER

65 State Street

Of Counsel: Augusta, Maine 04332

DAVID L. SHAPIRO LAURENCE GOLD *

1575 Massachusetts Ave. 1000 Connecticut Ave., N.W.

Can.» dge, MA 02138

Washington, D.C. 20036

(202) 833-9340

* Counsel of Record

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

@ ET 00

)\

QUESTIONS PRESENTED

1. May a state court refuse to entertain a federal

statutory private party cause of action against a State or

a state agency—such as the present state employee action

against the State of Maine under the overtime provisions

of the Fair Labor Standards Act, 29 U.S.C. § 201 ef seq.

—on the basis of state sovereign immunity?

2. If a state court may properly refuse to entertain

such a federal statutory private party action on the basis

of state sovereign immunity in certain circumstances but

not in others, may a state court do so in the circumstance

in which that court entertains analogous state statutory

actions?

(i)

ii

PARTIES TO THE PROCEEDINGS BELOW

Plaintiffs-Appellants below are John H. Alden, Walter

Anderson, Lawrence D. Austin, Cynthia Ayer, David M.

Barrett, Douglas L. Boothby, Nancy Bouchard, Randolph

E. Brown, Elizabeth A. Buxton, Susan A. Carey, Richard

E. Charest, David E. Cyr, Francis R. Cyr, Peter J. Deane,

Joseph S. DeFilipp, Patrick T. Delahanty, Joseph J.

Dentico, Daniel Dodge, Maura S, Douglass, Raymond

Dzialo, David Eldridge, Scott R. Erickson, E. Donald

Finnegan, Pauline N. Flagg, Richard H. Flanagan, Wil-

liam D. Francis, Lewis E. Frey, Richard Godin, Sandria

J.C. Griffin, Pauline A. Greaton Gudas, Normand W.

Guay, Karen Hartnagle, Alexandria Helms, Alan Hybers,

William W. Jackson, Betsy Jaegerman, William H. Jones,

Wayne Libby, John H. Lorenzen, Richard E. Manning,

Barbara J. Mascetta, Roman Maxsimic, Terry Michaud,

Donna M. Miles, Jon A. Mills, Michael R. Morin, Lisa K.

Nash, Martha Jo Nichols, Donald Paxton Parsley, Steven

Onacki, J. Charles O’Roak, Nancy R. Peck, Susan P.

Pierce, Lewis W. Randall, Michael K. Roach, Mark E.

Sellinger, Alison B. Smith, David Snyder, Charles D.

Strandberg, David G. Summers, Mark W. Warner, Joyce

Williams, Francis P. Witts, Allen O. Wright and Corinne

Zipps. Defendant-Appellee below is the State of Maine.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............ i

PARTIES TO THE PROCEEDINGS BELOW ..... ii

TABLE OF AUTHORITIES |... iv

ESS RIE ese eae 1

EEE SE a 2 os Pe 1

RULE 29.4(b) CERTIFICATION |. 1

CONSTITUTIONAL AND STATUTORY PROVI-

EE 1

STATEMENT OF THE CASE 8

REASONS FOR GRANTING THE WRIT... |. 5

EEE SSE 18

EAE SS a la

I et ee l4a

(iii)

CASES

iv

TABLE OF AUTHORITIES

oat

Aaron v. Kansas, 115 F.3d 818 (10th Cir. 1997)...

Ahern et al. v. State of New York, No. 80430,

1998 WL 3886231 (N.Y. App. Div., July 9,

RRR ISS Fa a Re ee 7,18

Allen v. Fauver, No. ESX-L-8802-94 (NJ. Suner.

Ct., 1998) on appeal to N.J. Super. Ct. App. Div.

SE eT ee 7,14

Blatchford v. Native Village of Noatak, 501 U.S.

a rere RS Sees | 8

Bunch v. Robinson, 122 Md. App. 4387, 712 A.2d

585 (Md. Ct. Spec. App., 1998) ........................... 7,13

Chisolm v. Georgia, 2 Dall. 419 (1793) ................... x

Claflin v. Houseman, 98 U.S. 1380 (1876) .............. 16

Davies v. City of Bath, 364 A.2d 1269 (Me. 1976) .. 4

Drake v. Smith, 390 A.2d 541 (Me. 1976) .......... a 4

F.E.R.C. v. Mississippi, 456 U.S. 742 (1982)... 16

German v. Wisconsin Dep’t of Transportation, No.

96-CV-1261 (Wis. Circuit Court, March 8,

|, EEE Se oS FS SE Rs es 7,14

Hans v. Louisiana, 1384 U.S. 1 (1890) .. 11

Hess v. Port Authority Trans-Hudson Corp., “613

U.S. 30 (1994). 11

Hilton v. South Carolina Public Railways C Comm’ n,

502 U.S. 197 (1991) .. 6, 10, 11, 12

Howlett v. Rose, 496 U.S. 356 (1990) . 10, 15

Jackson v. State, 544 A.2d 291 (Me. 1988), ‘cert.

denied, 491 U.S. 904 (1989) . 5

Jacoby et al. v. Arkansas Devartment ‘of Educa-

tion, 381 Ark. 508, 962 S.W.2d 773 (1998)... passim

Keller v. Dailey, No. YTAPEOS-658, 1997 WL

781897 (Ohio App. 10 Dist. December 16,

CIID ciscsineensnetietiiehincieetiainaltiadans Midst hile ain initinns 7,14

Maine v. Thiboutot, 448 U.S. 1 (1980) _.... Pee 6

Martinez v. California, 444 U.S. 277 (1980) __...... 16

McKnett v. St. Louis & S.F. Railway Co., 292 U.S.

| __ Sea 15, 16

Mills v. State of Maine, 853 F. Supp. 551 (D. Me.

I -ccccnrstessnbinntiumnmipenetidlcialal ian inlaid ideale 3

v

TABLE OF AUTHORITIES—Continued

Mills v. State of Maine, 1996 WL 400510 (D. Me.

1996), aff'd, 118 F.3d 37 (1st Cir. 1997)... 3

Minneapolis & St. L. R. Co. v. Bombolis, 241 U.S.

211 (1916) ...... .. 16,17

Mondou v. New York, 223 U.S. 1 (1912) ... = 16

Moody v. Commissioner, 661 A.2d 156 (Me. 1995). 5

Morris v. Massachusetts Maritime Academy, 565

N.IE.2d 423 (Maan. 1901) nnn. c ccc cceccce ecco nee seee 11

Mossman v. Donahey, 346 N.E.2d 305 (Ohio

1976) ll

Nevada v. Hall, 440 U.S. 410 (1979) 6

Raper v. State of lowa, No. CL 678918 (District

Court for Polk County, October 23, 1997) 7,138

Seminole Tribe of Fla. v. Florida, 517 U.S. 44

(1996) .......... + nt ae passim

Testa v. Katt, 330 U.S. 386 (1947) didi abasitthinitiae 16,17

Thiboutot v. State, 405 A.2d 230 (Me. 1979), aff'd

on other grounds, 448 U.S. 1 (1980)... 4

Whittington v. State of New Mexico Dep't of Pub-

lie Safety, Docket No. 19,065 (N.M. Ct. App.,

I I 7,13

Will v. Michigan Dep't of State Police, 491 U.S.

ne Ne dineecNe iac eeS 6, 10

Wilson-Jones v. Caviness, 99 F.3d 208 (1996),

amended on petition for rehearing, 107 F.3d 358

ee Oe eee 13

CONSTITUTIONAL PROVISIONS

U.S. Constitution, Article I, Section 8 passim

U.S. Constitution, Article VI, Clause2 passim

U.S. Constitution, Amendment XI... passim

STATUTES

Fair Labor Standards Act

EA 3

29 U.S.C. § 207 re nee 3

I 2

A IID illcsnchsbiinaisauidiieniteniheiseihins shidematesnin 3

vi

TABLE OF AUTHORITIES—Continued

Page

29 U.S.C. § 213 (b) (20) 3

29 U.S.C. § 216 (Db)... -.---------nce-nnnvenrnennnnnnnnenee 2, 3, 6

MAINE STATUTES

RR, EE 4

26 M.R.S.A. $8 664, 670 nen cence eneenennnennnnnnes 4

PAL US |) 4

, » AS OY FE |! 4

SP ALU, le 4

39-A M.R.S.A. § 101 > anced we Candela 4

OTHER MATERIALS

Carlos Manual Vazquez, What is Eleventh Amend-

ment Immunity? 106 Yale L.J. 1683 (1997)... 11

PETITION FOR A WRIT OF CERTIORARI

John H. Alden et al.—the plaintiffs in the trial court

and the appellants in the court below—respectfully petition

for a writ of certiorari to review the decision and judg-

ment of the Maine Supreme Judicial Court in John H.

Alden et al. v. State of Maine, Com-97-446 (August 4,

1998).

OPINIONS BELOW

The decision of the Maine Supreme Judicial Court in

this case is not yet officially reported and is reprinted as

Appendix A hereto (“Pet. App.”). The decision of the

Superior Court for Cumberland County, Maine, in this

case is unreported and is reprinted as Appendix B hereto.

JURISDICTION

The Maine Supreme Judicial Court entered judgment

on August 4, 1998. The jurisdiction of this Court is in-

voked pursuant to 28 U.S.C. § 1257(a).

RULE 29.4(b) CERTIFICATION

Since 28 U.S.C. § 2403(a) may apply and the United

States is not a party hereto, copies of this certiorari peti-

tion are being served on the Solicitor General of the

United States.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article I, Section 8 of the United States Constitution

provides, in pertinent part:

The Congress shall have Power . . . to regulate Com-

* *« * *

Article VI, Clause 2 of the United States Constitution

provides, in pertinent part:

This Constitution, and the laws of the United States

which shall be made in pursuance thereof .. . shall

be the supreme law of the land; and the judges in

2

every state shall be bound thereby, anything in the

Constitution or laws of any state to the contrary

notwithstanding.

The Eleventh Amendment to the United States Consti-

tution provides: ”

judicial power of the United States shall not

cambnal'0 Guanes © van Gate law OF uity,

commenced or prosecuted against one of the nited

States by Citizens of another State, or by Citizens or

subjects of any Foreign State.

Section 7(a)(1) of the Fair Labor Standards Act, 29

U.S.C. § 207(a)(1) provides, in pertinent part:

a) Employees aged in interstate commerce; ad-

ditronal applicability to employees pursuant to sub-

sequent amendatory provisions

1) Except as otherwise provided in this section, no

pt Raven shall employ any of his employees who in

any workweek is engaged in commerce or in the pro-

duction of goods for commerce, or is employed in

an enterprise engaged in commerce or in the pro-

duction of goods for commerce, for a workweek

longer than forty hours unless such employee receives

compensation for his employment in excess of the

hours above specified at a rate not less than one and

one-half times the regular rate at which he is

employed.

Section 16(b) of the Fair Labor Standards Act, 29

U.S.C. § 216(b) provides, in pertinent part:

employer who violates the provisions of [29

USC] am vl 206 or 207 . . . shall be liable to the

employee or employees affected in the ~mount of

their . . . unpaid overtime compensation . . . and in

an additional equal amount as liquidated damages

may be maintained against any employer (including

a public a ay) in 4 ap paps cagh _ =

petent jurisdiction by an

foe onl in behalf of himself or themselves and other

employees similarly situated.

3

STATEMENT OF THE CASE

1. In December, 1992, John Alden, as the first named

plaintiff, and a group of other Maine parole and proba-

tion officers (hereafter parole officers), filed suit against

the State of Maine in the United States District Court for

the District of Maine to vindicate their Fair Labor Stand-

ards Act (“FLSA”), 29 U.S.C. § 201, et seq., overtime

rights. FLSA § 7, in this regard, obligates the States to

compensate covered employees at premium rates for hours

worked in excess of the applicable statutory threshold.

29 U.S.C. § 207. And, FLSA § 16(b) authorizes em-

ployee suits for monetary relief “against any employer

(including a public agency) in any Federal or State court

of competent jurisdiction.” 29 U.S.C. § 216(b).

The District Court sustained the parole officers’ claim,

in part, holding that they were “law enforcement” em-

ployees, 29 U.S.C. § 213(b)(20), entitled to overtime

pay under the special provisions that apply to such em-

ployees, 29 U.S.C. § 207(k), and not, as Maine contended,

exempt “professional” employees, 29 U.S.C. § 213(a)(1).

See, Mills v. Maine, 853 F.Supp. 551, 552 (D. Me. 1994);

839 F.Supp. 3 (D. Me. 1993).

However, while the parole officers’ federal action was

pending, and before they received any back pay, this

Court decided Seminole Tribe of Fla. v. Florida, 517 U.S.

44 (1996). On the strength of that decision, the District

Court dismissed the parole officers’ federal court action on

Eleventh Amendment grounds, and its ruling was affirmed

on appeal. Mills v. State of Maine, 1996 WL 400510

(D. Me. July 3, 1996), aff'd, 118 F.3d 37 (ist Cir, 1997).

In August 1996, just after the District Court’s Eleventh

Amendment ruling, the parole officers filed this action

against the State of Maine in the Superior Court of Cum-

berland County, Maine, again alleging that the State had

violated the FLSA overtime provisions. The Superior

Court dismissed the parole officers’ claim as barred by state

4

sovereign immunity, and did so over the parole officers’

argument that the “FLSA, as federal law, is supreme

under the Supremacy Clause and must be enforced by

state courts.” Pet. App. 22a.?

The parole officers filed a timely appeal, raising two

main points grounded in the Supremacy Clause.” First,

state courts must enforce valid federal laws, such as the

FLSA, notwithstanding any claim of state sovereign

immunity. Second, Maine can not close its courts, on

sovereign immunity grounds, to private actions against the

State for monetary relief based on a claim under federal

law when its courts are open to private actions against the

State based on analogous claims under state law.*

The Maine Supreme Judicial Court by a 4-2 panel vote

affirmed the Superior Court. That court read Seminole

Tribe to confirm the view—expressed in earlier Maine

Supreme Judicial Court decisions —that the Eleventh

1 The State also argued that the parole officers’ claim was barred

by the statute of limitations. The Superior Court rejected that

argument, and the State did not appeal that ruling to the Maine

Supreme Judicial Court.

2 Appellants’ Br. at 9-29; Appellants’ Reply Br. generally.

3In Maine, state sovereign immunity is a common-law judicial

doctrine. State legislation creating a cause of action for private

parties against the State, without anything more, overrides any

claim of sovereign immunity. See, Davies v. City of Bath, 364 A.2d

1269, 1273 u.9 (Me. 1976) (“We are not bound, as are some juris-

dictions, by a constitutional provision which requires sovereign

immunity.”). As a result, in Maine, the State is subject to suit by

its employees under a wide variety of state laws: Maine Wage

Statute, 26 M.R.S.A. §§ 664, 670; Maine Whistle Blower Statute,

26 M.R.S.A. § 8383; Maine Family Medical Leave Act, 26 M.R.S.A.

§ 844; Maine Human Rights Act, 5 M.R.S.A. § 4551 et seq.; Maine

Workers Compensation Act, 39-A M.R.S.A. § 101 et seq.

4 Drake v. Smith, 390 A.2d 541 (Me. 1978); Thiboutot v. State,

405 A.2d 230 (Me. 1979), aff'd on other grounds, 448 U.S. 1 (1980) ;

5

Amendment embodies state sovereign immunity as a

background principle” of the federal Constitution that

applies beyond the Amendment's literal terms to bar fed-

eral claims advanced in state court where those claims

would be barred if brought in federal court. Pet. App.

6a. And, the Maine Court rejected the parole officers’

contention that Maine discriminated against federal causes

of action; that court reasoned that no Maine statute au-

thorized the precise state employee statutory cause of

action the parole officers had stated in their FLSA com-

plaint. Pet. App. 6a-7a.°

REASONS FOR GRANTING THE WRIT

The Article I legislative powers/state sovereign immu-

nity questions presented by this case—and a myriad of

like pending cases—follow on from the Article I/Eleventh

Amendment question decided in Seminole Tribe of Fla.

v. Florida, 517 U.S. 44 (1996) with the same inevitability

as the night follows the day. And, the questions presented

here go to the very essence of Congress’ law-making au-

rape vis-a-vis the States within the Constitution’s federal

an.

The Seminole Tribe Court held:

In overruling [Pennsylvania v.] Union Gas [Co. 491

oe pA ead i Aape we reconfirm that the back-

ind princip State sovereign immunity em-

bodied in the Eleventh Amendment is not so nth

eral as to dissipate when the subject of the suit is an

Jackson v. State, 544 A.2d 291 (Me. 1988), cert. denied, 491 U.S. 904

(1989) ; and Moody v. Commissioner, 661 A.2d 156 (Me. 1995).

5 The United States filed a brief as amicus curiae in support of

the parole officers in both the Superior Court and the Maine Su-

preme Judicial Court. In the court below, the United States’ posi-

tion was that: “Because the [superior] court’s ruling effectively

invalidates an act of Congress, and because its ruling impairs a

crucial enforcement mechanism for enforcing the [FLSA], the

United States . . . urge[s] reversal.” U.S. Br. at 1.

6

area, like the regulation of Indian commerce, that is

under the _—_ control of the Federal Govern-

ment. Even when the Constitution vests in Congress

complete oe authority over a particular area,

the Eleventh Amendment prevents congressional au-

thorization of suits by private parties against un-

consenting States. The Eleventh Amendment re-

stricts the judicial power under Article III, and

Article I cannot be used to circumvent the consti-

tutional limitations placed upon federal jurisdiction.

[517 US. at 71-72; footnote omitted. ]

The Fair Labor Standards Act, like many federal stat-

utes, provides for the bringing +e ops to ere had bis

by private parties in either a federal court or a sta

of sate tas jurisdiction. See 29 U.S.C. § 216(b). And,

of course, both the Eleventh Amendment and the Seminole

Tribe decision speak directly only to the scope of the

federal court jurisdiction over private party suits against

a State. Moreover, prior to Seminole Tribe, this Court had

repeatedly recognized that the Eleventh Amendment has

no application to federal claims brought against a State in

state court. E.g.. Hilton v. South Carolina Public Rail-

ways Comm'n, 502 U.S. 197, 204-05 (1991); Will v.

Michigan Dep’t of State Police, 491 U.S. 58, 63-64

(1989): Maine v. Thiboutot, 448 U.S. 1, 9 n.7 (1980);

Nevada v. Hall, 440 U.S. 410, 420 (1979).

Against that background, the parole officers in this

case—after bringing their FLSA suit in federal court and

prevailing on the merits. pre-Seminole Tribe, and then

being non-suited for lack of federal court jurisdiction,

post-Seminole Tribe—filed their FLSA claim against the

State of Maine in the Superior Court of Cumberland

County, Maine. This suit is, moreover, only one of many

such post-Seminole Tribe suits brought in various state

courts. In this case, as in the other similar cases, the State

responded by seeking to interpose a sovereign immunity

bar to the plaintiffs’ federal statutory claims bottomed on

the Eleventh Amendment itself, the “background principle

7

of state sovereign immunity embodied in the Eleventh

Amendment,” Seminole Tribe, 517 U.S. at 72, or on the

State law governing private party actions against the State.

This wave of litigation has now generated a direct con-

flict—predicated on conflicting readings of this Court's

decisions—between the decision of the Arkansas Supreme

Court in Jacoby et al. v. Arkansas Department of Edu-

cation, 331 Ark. 508, 962 S.W.2d 773 (1998), pet. for

cert. filed sub. nom. Arkansas Department of Education

v. Jacoby et al. (No. 98-04), and the decision of the

Maine Supreme Judicial Court here, as well as a set of

conflicting intermediate and trial court decisions from

eight other states.

The Arkansas Supreme Court in Jacoby v. Arkansas

Dept. of Ed., supra, rejected the state sovereign immu-

nity claim made therein and did so in reliance on its read-

ing of this Court’s decisions. To the same effect see

Whittington v. State of New Mexico Dept. of Public

Safety, No. 19,065 (N.M. Ct. App., September 3, 1998);

Ahern et al. v. State of New York, No. 80430, 1998 WL

386231 (N.Y. App. Div., July 9, 1998); Bunch v. Rob-

inson, 122 Md. App. 437, 712 A.2d 585 (Md. Ct. Spec.

App., 1998) pet. for cert. to Maryland Court of Appeals

pending; Raper v. State of lowa, No. CL 678918 ( Dis-

trict Court for Polk County, October 23, 1997).

In contrast, the Maine Supreme Judicial Court in this

case, placing great reliance on the Seminole Tribe deci-

sion, endorsed the State’s sovereign immunity claim and

non-suited the parole officers here for a second time. To

the same effect see; Allen v. Fauver, No. ESX-L-33(2-94

(N.J. Super. Ct. Law Div., 1998) on appeal to N.J.

Super. Ct. App. Div. No. A-3795-9775:; German v. Wis-

consin Dep't of Transportation, No. 96-CV-1261 (Wis.

Circuit Court, March 8, 1997); cf. Keller v. Dailey, No.

97 APEDS-658 1997 WL 781897 (Ohio App. 10 Dist.

December 16, 1977)

There is, we believe, no need to belabor the sensitivity

and difficulty—or the importance—of questions on the in-

terplay between federal authority and state sovereign im-

munity such as those presented here. The convolutions

in the law in this Court from Chisolm v. Georgia, 2 Dall.

419 (1793) though the Eleventh Amendment and on to

Seminole Tribe, as well as the sheer number of decisions

by the Court over the years attending to those questions

and the continuing close divisions within the Court, make

the case in that regard.

We do believe it worthy of emphasis, however, that the

decision below goes well beyond Seminole Tribe and its

precursors in limiting Congress’ Article I law-making

powers in an area of Congress’ plenary authority. The

Eleventh Amendment, after all, speaks only to the “Judi-

cial Power of the United States.” To be sure, the Court

—in delineating that power—has “understood the Elev-

enth Amendment to stand not so much for what it says,

but for the presupposition . . . which it confirms.” Semi-

nole Tribe, 517 U.S. at 54, quoting Blatchford v. Native

Village of Noatak, 501 U.S. 775, 779 (1991). And, as

a result, the Court has given the Amendment effect to

restrict federal court jurisdiction over cases other than

those involving the “Article III diversity jurisdiction of the

federal courts” that “the text of the Amendment would

appear to restrict.” Seminole Tribe, 517 U.S. at 54.

Be that as it may, it is a qualitatively different matter,

we submit, to apply the Eleventh Amendment—or a gen-

eral “presupposition” of state sovereign immunity that

finds even an implicit expression in the Constitution only

in the Eleventh Amendment—wholly outside the Article

III realm. And, the doctrinal difficulties in that course

pale in comparison to those entailed in recognizing an

exception to the Supremacy Clause that saves out the

state law of sovereign immunity from the otherwise over-

riding force of a federal statute enacted by Congress pur-

suant to its enumerated powers.

9

It is also very much to the point that the decision

below denies Congress all authority to enact legislation

within its enumerated Article I powers that both applies

to certain conduct by the States and provides for private

party judicial enforcement of the federal rights created

thereby. The section of the FLSA providing for such

private party enforcement of the Act against a covered

State, for example, is rendered a dead letter by the deci-

sion below. Thus, that decision, at the very least, places a

great strain on the rule of law and on our basic concep-

tions of due process in the vindication of federal statutory

rights.®

The sum of the matter is this. The recurring Article |

legislative powers/state sovereign immunity questions pre-

sented here are sensitive, difficult and important. The

Arkansas Supreme Court in the Jacoby case and the

Maine Supreme Judicial Court in this case have taken

Opposite positions based on their opposite readings of this

Court’s decisions. And, there is a split along the same

lines in the lower court case law in other States. All this

being so, the questions presented here—like the questions

presented in Seminole Tribe—trequire this Court’s authori-

tative answer.

L

An on-going debate has been joined in the state courts,

as pre-Seminole Tribe federal court suits against a State

have been re-filed, and post-Seminole Tribe suits are being

6 As both the parole officers and the United States pointed out in

the court below (see Appellants’ Brief at 13 n.6; Appellants’ Reply

Brief at 12-13; U.S. Brief at 24 n.9), federally mandated FLSA

wages constitute a property interest created by federal law, and

thus the State’s refusal to afford a federally mandated remedy (or

indeed any adequate remedy) for the recovery of those wages, con-

stitutes a deprivation of property without due process. Indeed, th»

federally mandated remedy may properly be viewed as an exercise

of the power delegated to Congress under the Fourteenth Amend-

ment to ensure that the States provide the redress needed to protect

such property interests.

10

initiated, in state tribunals. The conflicting positions

taken by the Arkansas Supreme Court in the Jacoby case

and the Maine Supreme Judicial Court in this case are

representative of the resulting division in the state courts.

(a) In the Jacoby case, as here, Arkansas employees,

after non-suiting their federal court case in the wake of

Seminole Tribe, filed a state court suit alleging non-

payment by the State of overtime wages owing under the

FLSA. As here, the Arkansas Department of Education

argued that the employees’ FLSA claims were barred by

the Eleventh Amendment and/or the State’s own law of

sovereign immunity.

The Arkansas Supreme Court, in a unanimous decision,

rejected that argument. The Arkansas Court noted: “In

Hilton {v. South Carolina Public Railways Comm'n, 502

U.S. 17 (1991)], the Court made the point emphatically

that the Eleventh Amendment does not apply to state

courts. Hilton, 502 U.S. at 204-05, citing Will v. Michi-

gan Dept. of State Police, 491 U.S. 58 (1989); Maine v.

Thiboutot, 448 U.S. 1 (1980); Nevada v. Hall, 440 U.S.

410 (1979).” Jacoby, 962 S.W.2d at 775. And, the

Arkansas Court added that where, as in Hilton, the fed-

era! statute “did impose liability on the states the {Su-

preme] Court concluded that the Supremacy Clause made

that law fully enforceable against the states in state

courts.” 962 S.W.2d at 776.- That logic applied equally

to sustain the state employees’ FLSA claims. /d.

The Arkansas Court relied upon Howlett v. Rose, 496

U.S. 356 (1990), cited in Hilton, to support the proposi-

tion that the States “may not exempt” themselves “from

federal liability by relying on their own common-law

heritage.” Jacoby, 962 S.W.2d at 776, quoting Howlett,

496 U.S. at 383. For the same reason, the Arkansas

Court held that the Arkansas employees’ FLSA claims re-

mained enforceable in state court regardless of any in-

11

munity provisions in the Arkansas Constitution. Jacoby,

962 S.W.2d at 777."

Finally, the Arkansas Court recognized “that some am-

biguous language in the Seminole Tribe opinion concern-

ing ‘unconsenting states’ has been seized upon as support

for the proposition that state consent is a prerequisite to

state liability in its own courts for violation of a federal

right.” Jacoby, 962 S.W.2d at 778 citing Carlos Man-

ual Vazquez, What is Eleventh Amendment Immunity?

106 Yale L. J. 1683, 1717 (1997), citing Seminole Tribe,

517 U.S. at 72. But the Arkansas Court discounted these

ambiguities—and similar dictum in Hess v. Port Author-

ity Trans-Iludson Corp., 513 U.S. 30 (1994), and Hans

v. Louisiana, 134 U.S. 1 (1890)—as “inconsequential”

~ aa of Hilton and Howlett. Jacoby, 962 S.W.2d at

The Arkansas Court thus concluded that “{i]n sum,

we have no doubt that the weight of authority favors the

employees in this matter. The FLSA now remains to be

enforced against state employers only in state courts and

is viable only by virtue of the Supremacy Clause.” Ja-

coby, 962 S.W.2d at 778.

(b) In sharp contrast, in the instant case, the Maine

Supreme Judicial Court read this Court’s Eleventh

Amendment decisions including Seminole Tribe, to au-

Maine Court majority's view, from “the underlying

premise of the Eleventh Amendment” which “reflects but

aspect of the states’ inherent, more sweeping immu-

from suits brought by private parties. A power so

TIn so holding, the Arkansas Court distinguished state court

decisions from other jurisdictions, e.g. Mossman v. Donahey, 346

N.E.2d 305 (Ohio 1976); Morris v. Massachusetts Maritime Acad-

emy, 565 N.E.2d 422 (Mass. 1991), which had upheld state sov

ereign immunity to federal claims, on the ground that those deci-

sions predated Hilton, “with its citation to Howlett v. Rose, supra.”

Jacoby, 962 S.W.2d at 778.

12

basic and profound would be an odd power indeed if it

from suit in the federal courts but

[T]he [Seminole Tribe] Court spoke of

ment as reflecting a more fundamental principle of

state sovereign immunity . . . The Court stated:

“{b]ehind the words of the constitutional provisions

_. . [t}here is . . . the postulate that States of the

Union, still possessing attributes of sovereignty, shall

be immune from suits, without their consent, save

where there has been a surrender of this immunity in

the plan of the convention.” [Seminole Tribe, 517

U.S.] at 68 (quoting Principality of Monaco v. Mis-

sissippi, 292 U.S. 313, 323 (1934) (internal quota-

tion and citation omitted). [Pet. App. 5a-6a.]

The Maine Court dissenters, however, read Seminole

Tribe, much as did the Arkansas-Court, to limit only

Article III jurisdiction, and not Congress’ Article I pow-

ers: Seminole Tribe, they said “provides little guidance as

to the proper resolution of this case: state courts are not

Article III courts, and ‘the Eleventh Amendment does

not apply in state courts.’” Pet. App. 9a, quoting

Hilton, 502 U.S. at 205. The dissenters added that the

Maine Court majority decision “accords symmetry [be-

tween federal and state court immunities] undue weight,

is devoid of any analysis of the FLSA, and does not

address the Supremacy Clause.” Pet. App. 10a. “To the

extent that Maine’s common law doctrine of sovereign

immunity conflicts with the provisions of the FLSA which

subject the State to liability in state court, the Supremacy

Clause resolves that conflict in favor of the FLSA.” /d.

at 12a.

13

(c) The lower state court decisions in other jurisdic-

tions cited pp. 7-8, supra, divide along essentially the

same fault line reflecting the same sharp disagreement

over the Seminole Tribe decision’s significance.

Finding State sovereign immunity not to bar FLSA

private claims: Whittington v. State of New Mexico Dept

of Public Safety, Docket No. 19,065 (N.M. Ct. App.,

September 3, 1998) (“based on the previous decisions by

requires the district court to enforce the FLSA notwith-

maaeierhe ae ey of state sovereign

: et al. v. State of New York, .

80430, 1998 WL 38623 at *2, July 9, 1998) ‘uci

ing that Seminole Tribe and Eleventh Amendment treat

with state immunity in federal fora and “not with the

states’ immunity from suit in any forum”) (citations

omitted); Bunch v. Robinson, 122 Md. App. 437, 712

A.2d 585, 595) (Md. Ct. Spec. App., 1998) petition for

certiorari to Maryland Court of Appeals pending (hold-

ing that “Seminole Tribe neither overruled Garcia [v. San

Antonio Metropolitan Transit Authority, 469 U.S. 528

(1885)], nor repudiated the prior law from Hilton re-

garding the inapplicability of the Eleventh Amendment

to state court actions”); Raper v. State of lowa, No. CL

678918 (District Court for Polk County, October 23

1997) (rejecting State’s argument that “collapsed the

doctrine of sovereign immunity and the Eleventh Amend-

ment so that no real difference exists between the two.”).*

8 The lower federal courts have joined in the debate albeit in

dictum, by expressing the view that the FLSA claims those courts

were dismissing on Eleventh Amendment grounds could still be

prosecuted in state courts. See, Aaron v. Kansas, 115 F.3d 813,

817 (10th Cir. 1997) (“[E]mployees can sue in state court for

ee under the FLSA as a state court of general juris-

ic obligated by the Supremacy Clause to enforce federal

law. ); Wilson-Jones v. Caviness, 99 F.3d 203, 211 (1996), amended

on petition for rehearing, 107 F.3d 358 (6th Cir. 1996) (same).

14

Finding State sovereign immunity to bar private FLSA

actions: Allen v. Fauver, No. ESX-L-3302-94 (N.J. Super.

Ct., February 17, 1998) on appeal to N.J. Super Ct.

Law Div. No. A-3795-9775 (“This Court agrees with the

rationale of applying Eleventh Amendment principles to

state common law immunity”); German v. Wisconsin Dep't

of Transportation, No. 96-CV-1261 (Wis. Circuit Court,

March 8, 1997); (“It would be anomalous if the ‘states

rights’ justices who authored Seminole Tribe . . . acted

to uphold states’ Eleventh Amendment immunity from

suit but, at the same time, affirmed congressional author-

ity to overcome a state’s own sovereign im™unity under

its state constitution.”): cf. Keller v. Dailey, No. 97A-

PEOS-658 1997 WL 781897 (Ohio App. 10 Dist. De-

cember 16, 1997).

- oa « ~

These jurisdictional papers are neither the time nor the

place to plumb the depths of the Eleventh Amendment,

the “presupposition” of state sovereign immunity that the

Court has stated informs the Amendment, the force of

the federal laws enacted pursuant to Congress’ enumer-

ated Article I powers by reason of the Supremacy Clause,

or the dual function of the state courts in the enforce-

ment of the federal law under the “Madisonian compro-

mise” on the creation of the lower federal courts. For

present purposes we rest on the proposition that the con-

flict below plainly requires plenary consideration and re-

view by this Court. We add only, that, in our view, the

Arkansas Supreme Court's decision is clearly correct in

that it is strongly supported both by many of this Court's

decisions and by the demands of the viable federalism

envisioned by the plan of the Constitution.

Il.

Whatever else may be true, the concept of a state sov-

ereign immunity bar to a federal statutory private party

cause of action in state court must rest on the core premise

15

that the State interposing the bar has such an immunity to

interpose as a matter of positive law. If not—if the State

has no such immunity to analogous state statutory private

party actions—state court recognition of an immunity to

federal actions is not an expression ion of the State’s prin-

courts tnay “den{y] jurisdiction . . . based solely upon the

source of the law sought to be enforced . . . [and] cast out

tm ier ope thee dy om, eed ee Bone

" McKnett v. St. Louis & S.F. Railway Co., 292 U.S.

230, 233-34 (1934).

The Maine Supreme Judicial Court sanctioned just such

a discrimination against the enforcement of federal claims

in the Maine courts. In so doing the Maine Court erred

and did so in a most fundamental respect.

The Maine Constitution and the Maine common law

do not place any limit on the Maine legislature’s power

to subject the State to private party actions in the Maine

courts seeking monetary remedies under state statutory

law. As we have noted, p. 4 n.3 supra, the Maine leg-

islature has in fact exercised its authority to enact a host

of state laws which authorize state employees to bring

suit against the State for damages, including wages owed.

And, the Maine courts have uniformly entertained these

do is entertain analogous federal statutory private party

actions—these are met with a selective state sovereign

immunity bar applicable only to such federal actions.

That, we submit, is contrary to the Supremacy Clause,

which charges “state courts with a coordinate responsibil-

ity to enforce [federal] law according to their

modes of procedure.” Howlett v. Rose, 496 U.S. at 367.

As the Howlett Court added, “{t}he laws of the United

States are laws in the several States, and just as much

binding on the citizens and courts thereof as the State

laws afe.... The two together form one system of juris-

16

prudence, which constitutes the law of the land for the

State.” 496 U.S. at 367, quoting Claflin v. Houseman, 93

U.S. 130, 136-137 (1876). For that reason; federal laws,

such as the FLSA, passed by Congress acting within the

scope of its Article I enumerated powers are as much a

part of the law of Maine as laws passed by the Maine

legislature.

In this regard, then, it is “settled that a state may not

exercise its judicial power in a manner that discriminates

between analogous federal and state causes of actions.”

F.E.R.C. v. Mississippi, 456 U.S. 742, 776 n.1 (1982)

(O’Connor, J., concurring and dissenting). States must

make their courts equally “available for the vindication

of federal as well as state created rights.” Jd. at 769.

By opening and closing its courts through its selective

state sovereign immunity bar, Maine practices just such

an improper discrimination against federal causes of ac-

tion analogous to state causes of actions.

The principle that states may not selectively favor state

causes of action—or selectively disfavor federal causes of

action—in state courts is, indeed, one of long standing.

As the Court recognized in Mondou v. New York, 223

U.S. 1, 58 (191) (the Second Employers’ Liability Case),

the States must hear claims in their courts brought under

the Federal Employees Liability Act (“FELA”) when

“their jurisdiction, as prescribed by local laws, is adequate

to the occasion.” The principle set forth in Mondou has

been repeatedly reaffirmed. See, e.g., Minneapolis & St.

L.R. Co. v. Bombolis, 241 U.S. 211 (1916); McKnett

v. St. Louis & S.F. Railway Co., supra; Testa v. Katt,

330 U.S. 386 (1947). See also F.E.R.C. v. Mississippi,

456 U.S. at 760; Martinez v. California, 444 U.S. 277,

283, n.7 (1980). As the Bombolis Court put the matter:

[T]he principle upon which the [Second Employer's

Liability Case] rested, while not questioning the di-

verse governmental sources from which state and na-

17

tional courts drew their authority, recognized the

unity of the governments, national and state, and

the common fealty of all courts, both state and na-

tional, to both state and national Constitutions, and

the duty resting upon them, when it was within the

scope of their authority, to protect and enforce rights

lawfully created, without reference to the particular

government from whose exercise of lawful power the

right arose. [241 U.S. at 222-223.]

To be sure, the Maine Court rejected the parole offi-

cers’ argument, grounded in this firmly established prin-

ciple that state courts may not discriminate against fed-

eral claims, on the basis that no Maine law provides a

claim for overtime precisely like the parole officers’ fed-

eral claim. Pet. App. 7a. But, as the foregoing discussion

demonstrates, this Court’s decisions make plain that a

state court is obligated to entertain federal claims where

that state court entertains state claims of the “same type,”

even if those claims are not identical to the federal claims.

Testa v. Katt, 330 U.S. at 394, emphasis added. And,

the Maine courts, as noted above, entertain a wide variety

of state employee state statutory law claims against the

State for monetary relief. Supra, p. 4 n.3.

Thus, even if there are circumstances in which a state

court may refuse to entertain a federal statutory cause of

action such as the present one on sovereign immunity

grounds—and we agree with the Arkansas Supreme Court

that there are not—the decision below cannot stand in

view of the Maine Court's recognition that there is no

state sovereign immunity bar to analogous state statutory

law private party actions.

18

CONCLUSION

For the above stated reasons this petition for a writ of

certiorari to the Maine Supreme Judicial Court should be

granted.

Of Counsel:

DAVID L. SHAPIRO

1575 Massachusetts Ave.

Cambridge, MA 02138

Respectfully submitted,

JONATHAN P. HIATT

LARRY ENGELSTEIN

815 16th Street, N.W.

Washington, D.C. 20006

DONALD F.. FONTAINE

482 Congress Street

Portland, Maine 04112

TIMOTHY L. BELCHER

65 State Street

Augusta, Maine 04832

LAURENCE GOLD *

1000 Connecticut Ave., N.W.

Washington, D.C. 20086

(202) 883-9340

* Counsel of Record

APPENDICES

, RUD-

MAN, DANA, and SAUFLEY, JJ. Majority: WA-

THEN, C.J., and ROBERTS, CLIFFORD, and SAU-

FLEY

Hl a

2

August 4, 1998, Decided

, C.J., and ROBERTS,

JJ. Dissenting: RUDMAN and DANA, JJ.

és be its H

He

WA

2a

In December 1992 Alden, a state probation officer,

filed a complaint against the State in federal district court

seeking overtime pay pursuant to the Fair Labor Stand-

ards Act (FLSA). While that claim was pending, the

Supreme Court of the United States decided Seminole

Tribe of Florida v. Florida, 517 U.S. 44, 134 L. Ed. 2d

252, 116 S. Ct. 1114 (1996), which held, on the basis of

the Eleventh Amendment to the United States Constitu-

tion, that Congress may not authorize pursuant to its

Article I powers suits in federal court by private parties

against unconsenting states. 517 U.S. at 72-73. Relying

on Seminole Tribe, the federal district court dismissed

Alden’s claim for lack of subject matter jurisdiction.

Mills v. State, 1996 U.S. Dist. LEXIS 9985, 1996 WL

400510 (D. Me. July 3, 1996), aff'd, 118 F.3d 37 (1st

Cir. 1997).

Alden then filed essentially the same complaint in the

Superior Court in August 1996. The State moved for a

judgment on the pleadings pursuant to M.R. Civ. P.

12(c), stating as grounds the doctrine of state sovereign

immunity and the statute of limitations. Although the

court found that Alden’s claim was not barred by the

statute of limitations, it granted the State’s motion on the

ground of sovereign immunity. Alden’s appeal followed.

The principal issue before us is whether state sovereign

immunity, as reflected in the Eleventh Amendment, pro-

tects the State from this federally created cause of action

in its own courts. Alden contends that Congress has

abrogated the State’s sovereign immunity by enacting the

FLSA. We disagree. Although Congress may have in-

tended to subject the states to the overtime provisions of

the FLSA, it does not have the necessary power, pursuant

to the Constitution, to accomplish this end.

The Eleverth Amendment provides: “The Judicial

power of the United States shall not be construed to ex-

tend to any suit in law or equity, commenced or prose-

cuted against one of the United States by Citizens of

3a

another State, or by Citizens or Subjects of any Foreign

State.” U.S. Const. AMEND. XI. “Although the text of

the Amendment would appear to restrict only the Article

III diversity jurisdiction of the federal courts, we have

understood the Eleventh Amendment to stand not so

much for what it says, but for the presupposition .. .

which it confirms.” Seminole Tribe, 517 U.S. at 54 (quot-

ing Blatchford v. Native Village of Noatak, 501 U.S.

775, 779, 115 L. Ed. 2d 686, 111 S, Ct. 2578 (1991)).

That presupposition consists of two elements: “that each

State is a sovereign entity in our federal system . . . and

. . . that ‘it is_inherent in the nature of sovereignty not

to be amenable to the suit of an individual without its

consent.’” Id. (quoting The Federalist No. 81, at 487

(Alexander Hamilton) (Clinton Rositer ed. (1961))

(citations omitted ).

We have concluded on several occasions that sovereign

immunity does protect the State from suit by private par-

ties in its own courts without its consent, even when the

cause of action derives from federal law. In Drake v.

Smith, 390 A.2d 541 (Me. 1978), we considered the

question whether the State’s enactment of a statutory

scheme whereby it became a partner with the federal gov-

ernment in paying medical care costs of certain recipients

of federal aid constituted a waiver of state sovereign im-

munity. We held that because the State had not waived

its Eleventh Amendment immunity from suit in federal

court, it was not reasonable to conclude that it had waived

its sovereign immunity to the same suit in state court. /d.

at 546.

In Thiboutot v. State, 405 A.2d 230 (Me. 1979), aff'd

on other grounds, 448 U.S. 1, 65 L. Ed. 2d 555, 100

S. Ct. 2502 (1980), we addressed the amenability of the

State to suits by private parties for retroactive AFDC ben-

efits pursuant to 42 U.S.C. § 1983. We held that “in the

absence of waiver by the state of its sovereign immunity,

the state may constitutionally interpose that immunity as

a bar to a class action brought in a state court under...

4a

§ 1983.” 405 A.2d at 237. Similarly, in Jackson v. State,

544 A.2d 291 (Me. 1988) cert. denied, 491 U.S. 904,

105 L. Ed. 2d 694, 109 S. Ct. 3185 (1989), addressing

the State’s amenability to suit under the federal Rehabili-

tation Act, 29 U.S.C. § 794, we held that “the State may

constitutionally interpose its sovereign immunity in state

court as a bar to an award of damages under the

Rehabilitation Act.” Jd. at 298. Most recently, Moody

v. Commissioner, Dept. of Human Servs., 661 A.2d 156

(Me. 1995), concerned the AFDC program and a viola-

tion by the Department of Human Services of the due

process rights of the plaintiffs. In reaching the conclusion

that the State is protected by sovereign immunity from

suit in its own courts, we stated: “The Eleventh Amend-

ment to the United States Constitution precludes the fed-

eral courts from circumventing the sovereign immunity of

the states. Although the Eleventh Amendment is not

directly applicable to state courts, the doctrine of sover-

eign immunity similarly protects the states from actions

[in] state courts.” Jd. at 158 n.3 (citation omitted).

Reading these decisions in combination, it is clear that

we have looked to the Eleventh Amendment to define the

contours of state sovereign immunity. If Congress cannot

force the states to defend in federal court against claims

by private individuals, it similarly cannot force the states

to defend in their own courts against these same claims.

In reaching this conclusion, we have found that the Elev-

enth Amendment and state sovereign immunity are analo-

gous, to the extent that both protect the State from being

forced by an act of Congress to defend against a federal

cause of action brought by a private individual. To hold

otherwise, by concluding that a state, immune from suit

in federal court, must defend against that same suit in its

own courts, would effectively vitiate the Eleventh Amend-

ment.

The Supreme Court’s opinion in Seminole Tribe rein-

forces this position. The Court began its analysis with

the general proposition that in order to abrogate a state’s

have done so “ ttoa

Seminole Tribe, 517 U.S. at 55 (quoting Green v. Man-

pon emda 64, mete ale

munity from suit.” 517 U.S. at 57.

The Court then addressed the second element, namely,

whether Congress has the power to abrogate sovereign

immunity in this manner. Concluding that the Eleventh

Amendment deprives Congress of this power, the Court

stated that the Amendment “serves to avoid ‘the indignity

Ween er Se eee eee

tribunals at the instance of private parties.” Jd. at 58

(quoting Puerto Rico Aqueduct & Sewer Auth v. Met £

& Eddy, Inc., 506 U.S. 139, 146, 121 L. Ed. 2d 605,

113 S. Ct. 684 (1993)). To suggest, as Alden has done,

that this indignity would be lessened by simply dragging

the State into a different forum misconstrues the under-

lying premise of the Eleventh Amendment.

The Eleventh Amendment does not explicitly protect

the states from suit in their own courts. Hilton v. South

Carolina Pub. Rys. Comm'n, 502 U.S. 197, 204-05, 116

L. Ed. 2d 560, 112 S. Ct. 560 (1991). That does not,

however, end the inquiry. In reaching its conclusion in

Seminole Tribe, the Court spoke of the Amendment as

reflecting a more fundamental principle of state sovereign

immunity: “For over a century, we have grounded our

decisions in the oftrepeated understanding of state sover-

eign immunity as an essential part of the Eleventh

Amendment.” Seminole Tribe, 517 U.S. at 66. The

Court stated:

Behind the words of the constitutional provisions are

postulates which limit and control. . . . There is

. . . the postulate that States of the Union, still

6a

possessing attributes of sovereignty, shall be immune

from suits, without their consent, save where there

has been a surrender of this immunity in the p'an of

the convention.

Id. at 68 (quoting Principality of Monaco v. Mississippi,

292 U.S. 313, 323, 78 L. Ed. 1282, 54 S. Ct. 745

(1934) (internal quotation and citation omitted)). The

postulate at work here, state sovereign immunity, is a

inciple” that is “embodied in the Elev-

comparable protection in their own courts. If Congress

does not have the power to abrogate state sovereign im-

munity with respect to federal causes of action brought

in federal courts, as the Seminole Tribe case clearly held,

then that limitation on congressional power may not be

circumvented simply by moving to a state court. Accord-

ingly, we conclude that sovereign immunity protects the

State from defending this federal cause of action in its

own courts.

Alden contends, in the alternative, that the State has

waived its sovereign immunity by implication, having en-

acted several statutes whereby the State has made itself

amenable to suit in the area of state employee wage

claims. Conspicuously absent from Alden’s list of statutes

affecting the wages and employment rights of state em-

ployees is 26 M.R.S.A. § 664(3) (Supp. 1997), which

is the only statutory provision directly relevant to the

central issue on appeal—the State’s amenability to suit

by state employees for overtime pay. That section pro-

vides, “The overtime provision of this section does not

apply to public erzployees,” id., who are defined as “any

7a

person[s] whose wages are paid by . . . the State.” /d.

§ 663(10) (1988).

We have stated that in the absence of a specific statu-

tory waiver of immunity, “a legislative waiver of the

I must respectfully dissent. Contrary to the Court’s

conclusion, the Eleventh Amendment does not define the

scope of state sovereign immunity. Although the Supreme

Court’s decision in Seminole Tribe of Florida v. Florida,

517 US. 44, 134 L. Ed. 2d 252, 116 S. Ct. 1114

(1996), precludes Alden from prosecuting this action in

federal court, neither Seminole Tribe nor the Supremacy

Clause permits the State to interpose its sovereign im-

munity as a defense to a suit alleging a violation of the

Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-

219 (1965, 1978 & Supp. 1998), that is maintained in

State court.

Pursuant to the FLSA, an employee may bring an ac-

tion alleging violations of, inter alia, the minimum wage

and maximum hours provisions of the act, “against any

employer (including a public agency) in any Federal or

State court of competent jurisdiction ....” Id. § 216(b)

(Supp. 1998). This provision clearly expresses a con-

gressional intent to abrogate the states’ immunity from

8a

suit. The Court concludes that Congress lacks the au-

thority to abrogate the states’ immunity from FLSA ac-

tions prosecuted in state courts by relying on Seminole

Tribe, a reliance that is misplaced.

In Seminole Tribe, the Supreme Court determined that

the Indian Commerce Clause does not grant Congress the

authority to abrogate the states’ Eleventh Amendment

immunity. See 517 U.S. at 47. Prior to the Seminole

Tribe decision, the Supreme Court had found only two

constitutional provisions that provided Congress with the

authority to abrogate Eleventh Amendment immunity:

the Fourteenth Amendment, see Fitzpatrick v. Bitzer, 427

U.S. 445, 49 L. Ed. 2d 614, 96 S. Ct. 2666 (1976); and

the Interstate Commerce Clause, see Pennsylvania v.

Union Gas Co., 491 U.S. 1, 105 L. Ed. 2d 1, 109 S. Ct.

2273 (1989). See Seminole Tribe, 517 U.S. at 59. The

Court agreed with the Seminole Tribe’s contention that

“‘there is no principled basis for finding that congres-

sional power under the Indian Commerce Clause is less

than that conferred by the Interstate Commerce Clause,’ ”

id. at 60-62, but it overruled the holding of Union Gas

that the Interstate Commerce Clause grants Congress the

power to abrogate Eleventh Amendment immunity, see id.

at 66. The Court reasoned that the holding of Union

Gas “deviated sharply” from the well-established constitu-

tional principle that the Eleventh Amendment “limited the

federal courts’ jurisdiction under Article III,” and it re-

jected the conclusion of the Union Gas plurality “that

Congress could under Article I expand the scope of the

federal courts’ jurisdiction under Article III.” Jd. at 63.

The Court emphasized that “Article I cannot be used to

circumvent the constitutional limitations placed upon fed-

eral jurisdiction.” Jd. at 73.

In Seminole Tribe, therefore, the Court determined that

Congress had exceeded its Article I powers by seeking to

expand the jurisdiction of Article III courts beyond the

limits imposed by the Eleventh Amendment. That deci-

v. South Carolina Pub. Ry. Comm'n, 502 USS.

197, 205, 116 L. Ed. 2d 560, 112 S. Ct. 560 (1991).

See also Bunch v. Robinson, 712 A.2d 585, 1998 Md.

App. LEXIS 134, *30-31, 1998 WL 348429, at *11

(Md. Ct. Spec. App. 1998) (“The Eleventh Amendment

addresses the susceptibility of a state to suit in federal

court, not the general immunity of a state from private

suit”). In contrast, the analytical framework set forth in

Hilton v. South Carolina Public Railways Commission,

502 U.S. 197, 116 L. Ed. 2d 560, 112 S. Ct. 560

(1991), sheds considerable light on our inquiry.

In Hilton, the Court considered whether the Federal

Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51-60

(1986), permits a cause of action against state-owned

railroads in state courts. See 502 U.S. at 199. The Court

had held in 1964 that FELA authorizes damages suits

against state-owned railroads, and that states waive their

Eleventh Amendment immunity by engaging in the rail-

way business. See Parden v. Terminal Ry. of Alabama

Docks Dep't, 377 U.S. 184, 12 L. Ed. 2d 233, 84 S. Ct.

1207 (1964). The Court reconsidered the Parden hold-

ing in 1987, however, and concluded that FELA, as in-

corporated by the Jones Act, 46 U.S.C. app. § 688 (Supp.

1998), did not abrogate states’ Eleventh Amendment im-

munity. See Welch v. Texas Dep’t of Highways and Pub.

Transp., 483 U.S. 468, 97 L. Ed. 2d 389, 107 S. Ct.

2941 (1987).

Rejecting a contention that the Welch decision con-

trolled its inquiry, the Court in Hilton concluded that

FELA does authorize causes of action against the states

in their courts. See Hilton, 502 U.S. at 203. The Court

reasoned:

the most vital consideration of our decision today,

which is that to confer immunity from state-court

10a

suit would strip all FELA and Jones Act protection

from workers employed by the States, was not ad-

dressed or at all discussed in the Welch decision.

Indeed, that omission can best be explained by the

assumption . . . that the Jones Act (and so too

FELA) by its terms extends to the States. This cov-

erage, and the jurisdiction of state courts to entertain

a suit free from Eleventh Amendment constraints, is

a plausible explanation for the absence in Welch of

any discussion of the practical adverse effects of

overruling that portion of Parden which pertained

only to the Eleventh Amendment, since continued

State-court jurisdiction made those effects minimal.

Id. at 203-04 (footnote omitted) (emphasis added). The

Court observed that the issue in Hilton “is different from

the issue in our Eleventh Amendment cases in a funda-

mental respect: The latter cases involve the application

of a rule of constitutional law, while the former casef]

applies an ordinary rule of statutory construction.” Jd.

at 205 (quotation omitted) (emphasis added). Although

the Court’s construction of FELA relied heavily upon

Parden and stare decisis, it observed that the “primary

focus” of a statutory construction should be “the lan-

guage and history” of the statute. Jd. at 205. The Court

cautioned that although the scope of Eleventh Amend-

ment immunity is “a relevant consideration,” achieving

symmetry between a state’s liability in state and federal

courts should not be imperative. Jd. at 205-06. The

Hilton decision concluded that because FELA imposes

liability upon the states, “the Supremacy Clause makes

that statute the law in every State, fully enforceable in

state court.” Jd. at 207.

The Court’s decision in this case accords symmetry

undue weight, is devoid of any analysis of the FLSA,

and does not address the Supremacy Clause. A different,

and in my opinion better, approach is illustrated by the

recent decision of the Arkansas Supreme Court in Jacoby

v. Arkansas Department of Education, 331 Ark. 508, 962

ila

S.W.2d 773 (1998). In Jacoby, the court concluded that

neither the Eleventh Amendment nor the sovereign im-

munity provision of the Arkansas Constitution? prevents

state employees from maintaining an FLSA cause of ac-

tion against the state in state court. See 962 S.W.2d at

775-78; see also Ribitzki v. School Bd. of Highlands

County, 710 So. 2d 226 (Fla. Dist. Ct. App. 1998)

(holding that the Eleventh Amendment does not immu-

nize the state from an FLSA action in state court);

Bunch, 712 A.2d 585, 1998 WL 348429 (holding that

the Supremacy Clause requires state courts to enforce the

FLSA against the states and that the scope of states’

sovereign immunity from suit in their own courts is not

coterminous with their Eleventh Amendment immunity).

The Jacoby court determined that the Seminole Tribe

decision was not conclusive “of state liability in its own

courts.” 962 S.W.2d at 777. The court reasoned that

pursuant to the Supremacy Clause, the FLSA must be

treated as much the law of Arkansas as laws passed by

the Arkansas legislature. See id. at 775. The court ob-

served that “state employees . . . are clearly entitled to

file FLSA claims against state agencies as employers”;

that “the FLSA expressly provides that state courts have

jurisdiction over these claims”; and that the FLSA is “the

law throughout the land, and state sovereign immunity

cannot impede it.” Id. at 777.

The Supreme Court has decided that Congress acted

within its Article I powers and did not violate the Tenth

Amendment when it provided state employees with the

protections afforded by the FLSA. See Garcia v. San

Antonio Metro. Transit Auth., 469 U.S. 528, 555-56, 83

L. Ed. 2d 1016, 105 S. Ct. 1005 (1985), reh’g denied,

471 US. 1049, 85 L. Ed. 2d 340, 105 S. Ct. 2041

2 Pursuant to Article 5, section 20 of the Arkansas Constitution,

“the State of Arkansas shall never be made a defendant in any of

her courts.”

12a

(1985). Pursuant to the Supremacy Clause, “this Con-

stitution, and the Laws of the United States which shall

be made in Pursuance thereof. . . shall be the supreme

Law of the Land; and the Judges in every State shall be

bound thereby, any Thing in the Constitution or Laws of

any State to the contrary notwithstanding.” U.S. Const.

art. 6. As the Supreme Court explained in Howlett v.

Rose.

federal law is enforceable in state courts . . . because

the Constitution and laws passed pursuant to it are

as much laws in the States as laws passed by the

state legislature. The Supremacy Clause makes those

laws ‘the supreme Law of the Land,’ and charges

state courts with a coordinate responsibility to en-

force that law according to their regular mode of

procedure.

496 U.S. 356, 367, 110 S. Ct. 2430, 110 L. Ed. 2d 332

(1990). “When Congress acts within its enumerated

powers to create a federal cause of action that imposes

liability on the states, state courts of general jurisdiction

may not refuse to hear the federal claim.” Bunch, 712

A.2d 585, 1998 Md. App. LEXIS 134 at *13, 1998 WL

348429, at *5. To the extent that Maine’s common law

doctrine of sovereign immunity conflicts with the provi-

sions of the FLSA which subject the State to liability in

State court, the Supremacy Clause resolves that conflict

in favor of the FLSA. Cf. Howlett, 496 U.S. at 377-78

(rejecting interpretation of Florida’s sovereign immunity

statute that rendered all state subdivisions immune from

section 1983 actions maintained in Florida courts and

3 In Garcia, the Court observed that federal supervision over “the

judicial action of the States is . . . permissible . . . as to matters by

the Constitution specifically authorized or delegated to the United

States.” 469 U.S. at 549 (quotation and citation omitted). The

Court reasoned: “we perceive nothing in the overtime and mini-

mum-wage requirements of the FLSA .. . that is destructive of

state sovereignty or violative of any constitutional provision.” Jd.

at 554.

13a

concluding, “to the extent that the Florida law of sover-

eign immunity reflects a substantive disagreement with the

extent to which governmental entities should be held

liable for their constitutional violations, that disagreement

cannot override the dictates of federal law.” ).

A determination that the Supremacy Clause requires

states to defend FLSA causes of action that are prose-

cuted in state courts, contrary to the Court’s concern,

would not “vitiate the Eleventh Amendment.” Such a

determination would not strip the State of its sovereign

immunity whenever a litigant sought to prosecute a fed-

erally-created cause of action against it. The FLSA’s

express authorization of suits against state employers in

state courts constitutes an explicit statement of congres-

sional intent to abrogate the states’ immunity from suit in

their own courts. If a statute creating a federal cause of

action does not contain an express statement of congres-

sional intent to abrogate states’ immunity, then a state

could successfully interpose its sovereign immunity as a

defense to that cause of action.* See Hilton, 502 U.S. at

206 (“When the issue to be resolved is one of statutory

construction, of congressional intent to impose monetary

liability on the States, the requirement of a clear state-

ment by Congress to impose such liability creates a rule

that ought to be of assistance to the Congress and the

courts in drafting and interpreting legislation.” ).

I would vacate the judgment of the Superior Court.

4 Similarly, the Maine Legislature may waive the State’s sover-

eign immunity only by enacting “a general law plainly conferring

the State’s consent to be sued as to a class of cases,” or by dealing

“specifically with a particular action sought to be brought against

the State and giving its plainly stated consent that the State be

sued in that action.” Drake v. Smith, 390 A.2d 541, 544 (Me. 1978).

Thus, the ability of Congress, when enacting valid legislation, to

abrogate the State of Maine’s immunity from suit in its own courts

parallels the Maine Legislature’s ability to waive the State’s sover-

eign immunity.

14a

APPENDIX B

STATE oF MAINE

CUMBERLAND, ss:

SUPERIOR COURT

Civil Action Docket No. CV-96-751

JoHN H. ALDEN, ef al.,

Plaintiffs

Vv.

STATE OF MAINE,

Defendant

DECISION AND ORDER

The named plaintiffs in this case number approximately

65. They are all employed by the Defendant State of

Maine as probation officers and juvenile caseworkers. In

this action they allege that Maine owes them money for

overtime work for which they should have been paid

pursuant to the Fair Labor Standards Act (FLSA). 29

U.S.C. §§ 201 et seq.

An identical lawsuit was filed by many of these same

plaintiffs in federal court on December 21, 1992. The

federal court held that the provisions of FLSA prohibited

Maine from excluding the plaintiffs from coverage of

FLSA. Mills v. State of Maine, 839 F. Supp. 3, 4 (D.

Me. 1993). It later held that liquidated damages and back

pay for a two year period would be awarded to the plain-

tiffs. Mills v. State of Maine, 853 F. Supp. 551, 555,

556 (D.Me. 1994). The matter was referred to a special

master for a determination on the amount of back pay

owed to each plaintiff. Both parties filed objections to

15a

the master’s report. Before a final judgment could be

entered by the court, the case of Seminole Tribe of

Florida v. Florida, 116 S.Ct. 1114 (1996) was decided.

Relying upon the holding in Seminole, the federal court

determined that it lacked subject matter jurisdiction be-

cause Maine had not waived its Eleventh Amendment

Rights.! The court dismissed the complaint, and the First

Circuit affirmed the dismissal. Mills v. State of Maine,

No. 92-410-P-H, 1996 WL 400410 (D. Me. July 3,

1996), aff'd —— F.3d ——, No. 96-1973, 1997 WL

361186 (1st Cir. July 7, 1997). The First Circuit held

that, although Congress expressly intended to abrogate

state immunity in FLSA actions in federal court, Con-

gress did not have the power to do so under the Com-

merce Clause, the source of Congress’ power to enact

FLSA. The court further held that FLSA was not en-

acted pursuant to section 5 of the Fourteenth Amend-

ment, which is a source of power by which Congress can

abrogate sovereign immunity.

While the Mills case was pending, pursuant to a col-

lective bargaining agreement, Maine began paying the

probation officers and juvenile caseworkers for overtime,

as of February 6, 1994. ~

On July 31, 1996, the plaintiffs filed the instant action.

Maine’s answer sets forth the affirmative defenses of sov-

ereign immunity and statute of limitations, among others.

Plaintiffs brought a motion to dismiss these two defenses,

1 Seminole involved the Indian Gaming Regulatory Act which

required states to negotiate with tribes and authorized suit against

the state to compel performances of the state’s duty under the Act.

The Supreme Court held that “notwithstanding Congress’ clear in-

tent to abrogate the States’ sovereign immunity, the Indian Com-

merce Clause does not grant Congress that power... .” Seminole,

116 S. Ct. at 1119. The Court expressly overturned Pennsylvania

v. Union Gas Co. 491 U.S. 1 (1989) which had held that the Com-

merce Clause gave Congress the power to abrogat® States’ immunity

under the Eleventh Amendment.

16a

and Maine moved for judgment on the pleadings pursuant

to Rule 12(c).

I. Statute of limitations

The statute of limitations for violations of FLSA is

two years, unless the violation is willful, in which case

the period of limitations is three years. 29 U.S.C. § 255.

In the federal court action, the plaintiffs sought FLSA

remedies for three years prior to the filing of the action

which was on December 21, 1992. It is not disputed that

Maine has paid overtime to the plaintiffs since February

6, 1994. In this action the plaintiffs are seeking damages

for the period of December 21, 1989 to February 6,

1994,

Maine argues that the two year period of limitations is

applicable and that since this action was not filed until

July 31, 1996, which was more than two years after

Maine started paying overtime to the plaintiffs, the action

must be dismissed. Maine points out that the federal

court held that the two year period applied instead of

the three year period because the violation was not willful.

Mills, 853 F. Supp. at 555. The plaintiffs claim that the

statute of limitations was tolled during the pendency of

their federal action. Both parties acknowledge that fed-

eral law on limitations applies in this case because it is a

federal statute of limitations that is at issue.

The Supreme Court held that the doctrine of equitable

tolling is available in federal cases. Burnett v. New York

Central R.R. Co., 380 U.S. 424, 434-35 (1965). In

Burnett the plaintiff filed a claim under the Federal Em-

ployers’ Liability Act (FELA) in state court, but the

action was dismissed for improper venue. A few days

later the plaintiff filed the same action in federal court,

but it was dismissed because the statute of limitations had

run. Because the state action had been brought in a

timely fashion and because the defendant was not unfairly

surprised by the filing of the federal action, equitable

17a

tolling was appropriate. The Court held that equitable

ns van dh rgpentiaeedh erm tmamending

Sled. yo tyy “ of federal Soamions

applied equitable tolling to a variety

etetes indinding cases in which the defendant is 8 gov-

ernmental entity.2 Irwin v. Department of Veterans Af-

fairs, 498 U.S. 89 (1990). The courts look at whether

the doctrine of equitable tolling will effectuate the pur-

pose of the statutory scheme; whether the plaintiff has

been diligent; and whether the defendant will be surprised

of a stale claim. Another factor utilized

courts in deciding whether to allow equitable toll-

is that the first action be filed in a court with apparent

further the policies and purposes of FLSA which are set

S.C. § 202. It is a remedial statute de-

correct and eliminate working conditions that

are detrimental to the health and well-being of workers.

An integral portion of the scheme is the right to collect

wages that have been wrongfully withheld. Allowing the

plaintiffs to finish in state court what they started to do

in federal court furthers the policies of FLSA. Maine

cannot claim unfair surprise nor complain about the

staleness of the claims. Both parties had been working

2 For a list of such cases see Webb v. United States, 66 F.3d 691,

696 (4th Cir. 1995).

3 Where the plaintiff has been diligent and the defendant has been

given notice of the claim, equitable tolling is appropriate. Farrell

v. Automobile Club of Michigan, 870 F.2d 1129, 1134 (6th Cir.

1989) (allowed equitable tolling when ERISA claim brought in

state court).

4 Filing an action in a court tha‘ clearly lacks jurisdiction will

not toll the statute of limitations. /urrell, 870 F.2d at 1133.

doe ts Sek

bars the plaintiffs from obtaining any monetary damages

from it. In support of this proposition, Maine relies upon

four cases: Moody v. Commissioner, Dept. of Human

Services, 661 A.2d 156 (Me. 1995); Jackson v. State,

544 A.2d 291 (Me. 1988), cert. denied, 491 U.S. 904

(1989); Thiboutot v. State, 405 A.2d 230 (Me. 1979),

aff'd on other grounds, 448 U.S. 1 (1980); and Drake

v. Smith, 390 A.2d 541 (Me. 1978).

Drake involved payments owed to a nursing home by

the Maine Department of Human Services under a fed-

eral/state welfare program. The trial court ordered the

Department to pay the nursing home, but the Law Court

held that sovereign immunity required dismissal of the

action.*> The court held that because the Maine Legisla-

ture had not waived the Eleventh Amendment immunity

of the state to be sued iu federal court for violations of

the welfare program, it was not reasonable to believe that

the Legislature had waived sovereign immunity protection

in the state courts. Drake, 390 A.2d at 546.

Thiboutot involved benefits under Aid to Families with

Dependent Children (AFDC) in which the court deter-

mined that the Maine Department of Human Services had

violated the federal AFDC statute. The plaintiffs re-

5 The Law Court declined to determine whether dismissal was

required because of a lack of jurisdiction or for the absence of a

cause of action. Drake, 390 at 543.

may constitutionally interpose its sovereign immu-

nity in state court as a bar to an award of damages

under section 504 of the Rehabilitation Act.

Jackson, 544 A.2d at 298. The Law Court relied upon

Atascadero State Hospital v. Scanlon, 473 U.S. 234

(1985), in which the Supreme Court had held that states

were immune from suit in federal court for violations of

Moody involved the AFDC program and a violation of

the due process rights of the plaintiffs by-the Maine De-

partment of Human Services. A similar case was brought

in the federal court which found that the Department had

violated the plaintiffs’ rights under the AFDC statute. The

Department stopped the violation and complied with the

federal decision. The trial court in the state action ordered

the Department to notify members of the plaintiff class

of their rights to certain payments, and the Law Court

reversed. Since there was no ongoing violation of the

law, the only purpose of the notice was to provide a means

for the class members to seek retroactive payments. The

Law Court held that an award of retroactive monetary

20a

relief was the same as damages to be paid from state funds

and was barred by sovereign immunity. In a footnote, the

Court stated:

The Eleventh Amendment to the United States Con-

stitution precludes the federal courts from circum-

venting the sovereign immunity of the states. Al-

though the Eleventh Amendment is not directly

applicable to state courts, the doctrine of sovereign

immunity similarly protects the states from actions of

State courts.

Id. at 158, n.3. (Citations to Thiboutot and Drake

omitted).

In a concurring opinion in Moody, Justice Lipez agreed

that prior decisions of the Law Court mandated the result,

but he found it “difficult to reconcile with the Supremacy

Clause of the Federal Constitution.” He agreed that the

past decisions of the Law Court had relied upon Eleventh

Amendment jurisprudence in the development of the sov-

ereign immunity doctrine in Maine. Because the parties

had not challenged that reliance, he found the Moody case

an inappropriate one to examine whether the Eleventh

Amendment principles should continue to be incorporated

into the state sovereign immunity doctrine.

These four Maine cases make it apparent that in Maine

the doctrine of state sovereign immunity has incorporated

the principles of Eleventh Amendment immunity. Simply

put, if a plaintiff can’t seek damages against the state for

violations of a federal law in federal court, the plaintiff

can’t seek damages in state court either.

Eleventh Amendment jurisprudence is the subject of

much debate as can be seen from the vigorous dissents in

Seminole. The majority accepted the historical view that

the understanding of the framers of the United States

Constitution was that states were immune as sovereigns.

When it became apparent in Chisholm v. Georgia, 2 U.S.

(2 Dall.) 419 (1793), that the Supreme Court did not

21a

share that general mene: :S the Eleventh Amend-

ment was quickly adopted. Se 116 S.Ct. at 1130.

For over a century a a ae ay 9? the Court has recog-

nized that the intent of the Prine Se was broader

than its literal meaning, and in in pe way the Amend-

ment, the Court has gone beyond the ewe

words. Hans v. Louisiana, 134 U.S. 1 (1890). The

Amendment, as interpreted, bars all actions for money

damages against states in federal court brought by any-

one, unless the state has consented to suit. The Court

speaks of the Eleventh Amendment as though it were

synonymous with common law sovereign immunity.

“[EJach state is a sovereign entity... and. . . [i]t is

inherent in the nature of sovereignty not to be amenable

to the suit of an individual without its consent.” Seminole,

116 S.Ct. at 1122 (citations and quotations marks de-

leted). Although there are other views on the subject

of sovereign immunity as demonstrated by the dissents in

Seminole, it is certainly rational for the Law Court to

continue to apply Eleventh Amendment principles to state

sovereign immunity.

Maine is not alone in relying upon Eleventh Amend-

ment principles to form and illuminate state sovereign

immunity law. Following a thorough discussion of the

history of the Eleventh Amendment, the Ohio Supreme

Court in Mossman v. Donahey, 346 N.E. 2d 305 (Ohio

1976) held that the reasoning and purpose of the Eleventh

Amendment applied to suits in state courts as well.

“{S]tate sovereign immunity is a right of constitutional

proportions, whether it is considered to derive from the

plan of the Constitution itself, or from the Eleventh

Amendment. . . .” Mossman, 346 N.E. 2d at 312.

Accord Morris v. Massachusetts Maritime Academy, 565

N.E. 2d 422 (Mass. 1991).®

6€The memorandum of the Secretary of Labor suggests that

Morris is no longer good law because of the decision of the Supreme

Court in Hilton v. South Carolina Pub. Rys. Comm’n, 502 U.S. 197

acy Clause, they are wrongly decided and unconstitutional.

have violated the FLSA provisions, the state courts must

award such damages when violations are proven. They

argue that FLSA, as federal law, is supreme under the

Supremacy Clause and must be enforced by state courts.

Some federal courts have suggested in dicta that such is

the case. In Wilson-Jones v. Caviness, 99 F.3d 203, 211

(6th Cir. 1996), the court dismissed a FLSA action by

(1991). In Morris the issue was whether state sovereign immunity

could be asserted in a Jones Act case. Hilton held that FELA and

the Jones Act created a cause of action against states enforceable

in state courts. Although the actual holding in Morris has been

modified by Hilton, the proposition in Morris, that states look to

Eleventh Amendment law to elucidate the states’ sovereign immu-

nity law, was not disturbed.

Hilton is a difficult case to place in the framework of the Court's

Eleventh Amendment jurisprudence, except to recognize, as did

Justice O’Connor in her dissent, that hard cases make bad law. 502

U.S. at 207. The majority’s particularly heavy emphasis on stare

decisis is perhaps the only way to explain the case. It certainly

seems contrary to the holding in Will v. Michigan Dept. of State

Police, 491 U.S. 58 (1989) which basically held that if you can’t

sue a state or state official in a § 1983 claim in federal court, you

can’t do so in state court either. Hilton itself emphasizes that it is

a case of pure statutory interpretation, not constitutional interpre-

tation. Whether Hilton remains good law after Seminole is ques-

tionable. Hilton claims to recognize the “federalism-related con-

cerns that arise when the National Government uses the state

courts as the exclusive forum to permit recovery under a congres-

sional statute.” Writing for the majority, Justice Kennedy stated

that it was desirable to have a symmetry which makes a state’s

liability or immunity the same in both state and federal courts, but

that symmetry could not override expectations that had been built

upon stare decisis.

23a

state employees against Ohio on Eleventh Amendment

grounds and stated: “{S]tate employees may sue in state

court for money damages under the FLSA, and a state

court would be obligated by the Supremacy Clause to

enforce federal law.” See also Aaron v. State of Kansas,

F.3d —.—, No. 96-3095 (10th Cir., June 17, 1997).

The Tenth Circuit cites to Justice Marshall’s concurring

opinion in Employees of Dep't. of Pub. Health & Welfare

v. Department of Pub. Health & Welfare, 411 U.S. 279,

298 (1973), in which he stated that state courts have an

independent constitutional obligation to enforce employees’

rights under FLSA. While dicta from the federal courts

cannot be ignored, it cannot be considered controlling par-

ticularly when the courts did not analyze the precise issue.

The Supremacy Clause argument would be persuasive

but for the fact that it can only be applicable where the

federal legislation is authorized. We now know that Con-

gress does not have the power to abrogate Eleventh

Amendment immunity, except when acting pursuant to the

Fourteenth Amendment, and FLSA was not enacted under

the Fourteenth Amendment. Mills, No. 96-1973, 1997

WL 361186. Thus, Congress did not have the power to

abrogate Eleventh Amendment immunity in FLSA. Be-

cause Congress did not have the power under the Com-

merce Clause to abrogate Eleventh Amendment immun-

ity and because state sovereign immunity is synonymous

with Eleventh Amendment immunity, Congress did not

have the power to abrogate the immunity of states to be

sued for damages in their own courts, without their con-

sent.’ Therefore, the Supremacy Clause does not come

into play.

This court concludes that the Maine cases compel a rul-

ing in this action that the plaintiffs are barred by the

7A state trial court in Wisconsin has come to the same conclu-

sion in a FLSA action against a state agency. German v. Wis-

consin Dep't of Transp., Docket No. 96-DV-1261, (Circuit Court,

Branch 2, March 11, 1997).

24a

doctine of sovereign immunity from collecting damages

from Maine in this case. There being no

relief can be granted, judgment must be granted for the

State of Maine.

ORDER and JUDGMENT

The motion of the defendant State of Maine for judg-

ment on the pleadings is granted. Judgment is granted

to the defendant State of Maine.

/s/ Susan Calkins

SUSAN CALKINS

Superior Court Justice

Dated: July 18, 1997