Reply Brief — Alden v. Maine

OFFICE OF THE CLERK

IN THE REME COURT, U.S.

Supreme Court of the Wn

OCTOBER TERM, 1998

JouHN H. ALDEN, et al.,

” Petitioners,

STATE OF MAINE,

Respondent.

On Petition for a Writ of Certiorari to the

Maine Supreme Judicial Court

REPLY BRIEF FOR PETITIONERS

JONATHAN P. HIATT

LARRY ENGELSTEIN

816 16th Street, N.W.

Washington, D.C. 20006

DONALD F.. FONTAINE

482 Congress Street

Portland, Maine 04112

TImMoTHY L. BELCHER

65 State Street

Of Counsel: Augusta, Maine 04332

DAVID L. SHAPIRO LAURENCE GOLD *

1575 Massachusetts Ave. 1900 Connecticut Ave., N.W.

Cambridge, MA 03138 Washington, D.C. 20036

(202) 833-9340

* Counsel of Record

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REPLY BRIEF FOR PETITIONERS

2

that issue is squarely and directly presented by the con-

flicting decisions of the Maine Court and the Arkansas

Court. There is simply nothing to be gained in the in-

terest of informed and reasoned decisionmaking in this

Court that justifies a period of additional litigation in the

state courts without any authoritative guidance.

2. As we noted in our petition, these jurisdictional

papers do not present the proper occasion for a full-dress

consideration of the questions presented here on the merits

—that occasion is the briefs on the merits and the oral

argument. Given respondent’s presentation, however, we

do think it appropriate to meet the brief in opposition

on three of its points.

a. The brief in opposition (at pp. 6-10) attempts to

create the impression that the Eleventh Amendment, and

this Court’s Eleventh Amendment cases upholding state

sovereign immunity in the federal courts, govern here.

But this Court has affirmed, and reaffirmed, that the Elev-

enth Amendment does not apply to state court proceed-

ings and thus does not provide the State an immunity

from suit in the state courts. See Pet. 6, 8-11 (collecting

cases).

b. The brief in opposition (at p. 7 n.3) marshalls a

set of quotations from the Court’s Eleventh Amendment

cases in order to suggest that the Court has recognized

a general state immunity in private-party state-court fed-

eral-law cases absent the State’s consent. Those quota-

tions—each of which is taken out of context—do not

support that broad proposition. Indeed, the square con-

trary holding of Nevada v. Hall, 440 U.S. 410 (1979),

belies respondent’s submission in this regard.

c. The brief in opposition’s reliance (at pp. 15-17) on

Printz v. United States, 117 S. Ct. 2365 (1997) and its

predecessor “commandeering” Tenth Amendment cases is

wholly misplaced. In Printz, and in its predecessors, this

gards, id., thereby giving added weight to our submission that this

matter is ripe for review.

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Court was at pains to distinguish between the situations

there at hand and the special role and responsibility of

the state courts under the Supremacy Clause in the en-

forcement of federal law. See, e.g., 117 S. Ct. at 2370-

2371, 2381.

IL

Respondent’s argument (Br. in Opp. 19-22) that the

certiorari petition’s second question presented—whether

Maine can close its courts to employee federal statutory

wage claims against the State where analogous state statu-

tory claims are justiciable—was not considered by the

Maine Supreme Judicial Court flies in the face of the

record and the Maine Court’s decision.

The discrimination argument was fully presented; in-

deed one of the “issues presented for review” to the Maine

Court was whether “the Supremacy Clause of the United

States Constitution [is] violated when a state court bars

a federal FLSA action against the state for overtime pay

while simultaneously permitting similar suits based on

state law.” Appellants Br. at 3. And, a full seven pages

of our principal brief to the Maine Court was in support

of the contention that “the state may not discriminate

against federal causes of action.” Appellants Br. at 14-21.

Eight pages of our’reply brief, in turn, were in support of

the argument that “the Supremacy Clause prohibits dis-

crimination by a state court against federal causes of

action that are analogous to justiciable state cases.” Ap-

pellants Reply Br. at 4-13.

The Maine Court, moreover, never even suggested that

the discrimination argument was not properly presented.

To the contrary, the court below confronted the argu-

ment directly (though choosing to misphrase our discrim-

ination contention as one of “waiver”) and in so doing,

rejected our position on the merits (and not on any of

the procedural grounds tendered by the State of Maine).

The Maine Court's ruling, set out in the last section of

its opinion (dealing with our “alternative” argument),

was that Maine state law does not create a cause of action

against the State on the particular matter in controversy

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(overtime pay) and thus that there was no “waiver” (viz.,

no discrimination ). See Pet. App. 6a-7a.

Contrary to respondent (Br. in Opp. 22), this ques-

tion—what constitutes discrimination against a federal

as a matter of federal law,

iner

owing—is in itself a federal issue.

The brief in opposition’s attempt (at p. 23 n.11) to

push Howlett v. Rose to one side is misleading. Howlett

is devoted in substantial part to a detailed elaboration of

the State’s discrimination against federal (as opposed to

state) claims in its courts. 496 U.S. at 378-380. And,

this Court from Mondou v. New York, 223 US. 1

(1912), through Testa v. Katt, 330 U.S. 386 (1947),

and on to Howlett.

CONCLUSION

For the reasons stated in the certiorari petition and in

this reply brief the petition should be granted.

*)

Of Counsel:

DAVID L. SHAPIRO

1575 Massachusetts Ave.

Cambridge, MA 03138

5

Respectfully submitted,

JONATHAN P. HIATT

LARRY ENGELSTEIN

816 16th Street, N.W.

Washington, D.C. 20006

DONALD F. FONTAINE

482 Congress Street

Portland, Maine 04112

TrmorTuy L. BELCHER

65 State Street

Augusta, Maine 04332

LAURENCE GOLD *

1000 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 833-9340

* Counsel of Record