Amicus Curiae Brief — Alden v. Maine

No. 98-436 Supreme Court, U.S.

FFE ED

JAN 7 1999

IN THE

- CLERK

Supreme Court of the Hnited States“

OCTOBER TERM, 1998

—< > —

JOHN H. ALDEN, et al.,

Petitioners,

—VvV.—

STATE OF MAINE,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT

FOR THE STATE OF MAINE

BRIEF FOR THE ASSOCIATION OF AMERICAN

PUBLISHERS, INC., THE AMERICAN SOCIETY

OF JOURNALISTS AND AUTHORS, INC.,

THE AMERICAN SOCIETY OF MEDIA

PHOTOGRAPHERS, INC., THE ASSOCIATION

OF AMERICAN UNIVERSITY PRESSES, INC.,

THE AUTHORS GUILD, INC., COPYRIGHT

CLEARANCE CENTER, INC., NATIONAL MUSIC

PUBLISHERS ASSOCIATION, INC., AND THE

SOFTWARE PUBLISHERS ASSOCIATION AS

AMICI CURIAE SUPPORTING PETITIONERS

CHARLES S. SIMS

Counsel of Record

BRUCE F. BOYDEN

PROSKAUER ROSE LLP

1585 Broadway

New York, New York 10036

(212) 969-3950

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A A tee mnegreye tangy ed

- Se A A A ETN ae a ah ly ——

QUESTION PRESENTED

Where Congress creates a cause of action pursuant to its

Article I powers and entrusts its enforcement to state courts,

may states defending against such actions in state courts

interpose a defense of sovereign immunity, notwithstanding the

Supremacy Clause of the United States Constitution?

Page

TABLE OF CONTENTS

IED oc 0 5 bic css bb edbioveseneed sins i

ee so oe bebe edecadecsed oud iv

INTEREST OF THE AMICI CURIAE .. 0. cc ccccccccceceeees l

ee... . oa. eeaneedeksoed 6eue 3

ae Oe ee a eeeee 4

THE SUPREMACY CLAUSE MAKES THE FLSA

FULLY ENFORCEABLE IN MAINE’S COURTS,

ASSERTIONS OF SOVEREIGN IMMUNITY

Ss wwe anes 4

A. Hilton v. South Carolina governs the

0 PERLE FP Ot LPO 5

B. Hilton is consistent with the text of the

Constitution and with this Court’s

MENG. bs'nccdddabsevnrecceccesoes 6

THE ELEVENTH AMENDMENT DOES NOT APPLY

TO SuITs AGAINST STATES IN STATE CourTs. ... 13

A. The Eleventh Amendment restricts only

federal judicial power. ............55-. 14

Il.

B. Seminole did not hold the Eleventh

Amendment effective in state courts or

superior to the Supremacy Clause. ...... . 17

BECAUSE MAINE’S REFUSAL TO AWARD IN

STATE COURT THE WAGES CONCEDEDLY

REQUIRED BY FEDERAL LAW WOULD VIOLATE

THE DUE PROCESS CLAUSE, CONGRESS

MAY CONSTITUTIONALLY SUBJECT MAINE TO

SUIT IN STATE COURT FOR THOSE WAGES FREE

OF ANY SOVEREIGN IMMUNITY DEFENSE. ....... 18

iv

Page

TABLE OF AUTHORITIES

Cases

Aaron v. Kansas,

115 F.3d 813 (10th Cir. 1997) ... 2... 6. cece eee 16

Alden v. State,

of’ 5.. 1 |. Ferrer Peo 13,14

Atascadero State Hosp. v. Scanlon,

EEE cach acbdssnbsatwacnaseaedas 16

Brown v. Gerdes,

Rg I oe a ee pee ere )

California & State Lands Comm'n v.

Deep Sea Research,

__ US. _, 118 S. Ct. 1464 (1998) .............. 16

Chavez v. Arte Publico Press,

ESS FA 8 be sk esr kee 1, 2,3, 19

City of Boerne v. Flores,

TRG Gee bivdccdvcveks tess WARK 17, 20

Claflin v. Houseman,

SUE TSO 6 d\n Hie CSN EEA UR 11

Felder v. Casey,

GE Gs BO LEOOEE 0 cecvccusehccéecnedsudencs 11

Page

First English Evangelical Lutheran Church

v. Los Angeles,

PEED cadcasdecctich@ecetasadice 19

Fitzpatrick v. Bitzer,

PIED oo ckadbovénédacetebacavses 16

Florida Dep't of State v. Treasure Salvors, Inc.,

SERS SE ae ep a na rs eae 19

Garcia v. San Antonio Metro. Transit Auth.,

at 6 Che ee cet 6 ok haces os 2,4

Hans v. Louisiana,

Se wis cdncwescive vahddchwcul 14, 16

Hess v. Port Auth. Trans-Hudson Corp.,

PD io wd deo ca dudddhe \idvadeeed s 15

Hilton v. South Carolina Pub. Rys. Comm'n,

hE cies cc dbh bbe sik adele passim

Howlett v. Rose,

CED + cétn0cethathbvst aden passim

Katzenbach v. Morgan,

oS ey nse ee re 20

Maine v. Thiboutot,

Pe RATE bb cutdcdeaGeWeewhhs cb dacdue 15

vi

Page

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) .........0-e eee eeee 3

Martin v. Hunter's Lessee,

14 U.S. (1 Wheat.) 304 (1816) .... 2... 6... eee eens 7

Martinez v. California,

Lit ®- 7). errs te tr 12

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) .........-02 eee eee 6

McKesson Corp. v. Division of Alcoholic

Beverages & Tobacco,

GOES. TECTED oc cccccnscteesbssedoaceess 18

Mills v. Maine,

118 F.3d 37 (ist Cir. 1997) ........000eeeeeee 6, 12

Mondou v. New York, New Haven & Hartford R.R.,

BD UG. 8 AID bi cdin cc o.6cb eb bob beicdtadch 7,12

Nevada v. Hall,

SE aren or ree er passim

New York v. United States,

— fi RS are ea rr rr 8,13

Palmore v. United States,

lal & 7. Se er ee ae 7

vii

Page

Parden v. Terminal Ry. of Ala.,

PE EE ac ob oboe oa odeckdes eekeh 2, 16

Printz v. United States,

Rs SEE Os oe BE CRED (onda Vena’ 8, 13

Reich v. Collins,

ROI as i et 18, 19

Seminole Tribe v. Florida,

i passim

Testa v. Katt,

I a. ak 7

Ward v. Board of County Comm'rs,

a a 18

Welch v. Texas Dep't of Highways & Pub. Transp.,

el os cask boca eek oeks geeced

Will v. Michigan Dep't of State Police,

ES Te rer 8,9, 11,15

Wilson-Jones v. Caviness,

SE ET ba kG ou ddd cccoueueee 16

Statutes and Other Authorities

viii

Page

UG. Camst, G0, VEGF. 2. cc dceewe csc ctiverees passim

UB; Come GORGE. BE occ ckcccccccsevburesusns passim

U.S. Const. amend. XIV ...........0055. 2, 4, 17, 18, 20

GRUBG. OURS Civic ec eciccccccdes neces caverns Gen 8,9

Copyright Remedies Clarification Act,

Pub. L. 101-553, 104 Stat. 2749 (1990) ............ 2

Fair Labor Standards Act (FLSA),

i Fa S| A eere errs ss passim

Federal Employers’ Liability Act (FELA),

4S USL, O65 SIGD 6 55 Fis iicd WN ci os ieee 5

The Federalist No. 84 (Alexander Hamilton)

(Clinton Rossiter ed.) . 2... 0... cee eee eee ees 6

AMICI CURIAE BRIEF IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICI CURIAE'

Amici, who file this brief with the consent of the parties,

represent or license thousands of authors, publishers, and

consumers of books, software, educational materials, and

musical compositions who would have no meaningful protec-

tion from infringement by states and state entities if the claims

of some states to sovereign immunity from suits under federal

law in both federal and state courts were upheld.

Because of the extensive use state governments make

of copyrighted materials — in state colleges and universities, in

elementary and high school public education, in purchasing

educational materials (software, books, sheet music) in some

jurisdictions, in operating state university presses, in admin-

istering all the unpaid functions, programs and activities of a

modern welfare and regulatory state — it is of vital importance

to the creative community that copyright be fully protected

against government infringement. Amici submit this brief, in

a case involving no apparent copyright issue, because of their

vital interest in ensuring that Congress may, if the need should

arise, provide for effective copyright damage remedies against

state infringement in state courts. Reversing the decision be-

low appears essential to preserving Congress’s power to do so.

In a recent decision, Chavez v. Arte Publico Press, 157

F.3d 282 (1998), vacated and rehearing en banc granted

(10/1/1998), a Fifth Circuit panel held that despite Congress’s

' No counsel for a party authored this brief in whole or in

part, and no person or entity other than the amici

curiae, their members, or their counsel, made a

monetary contribution to the preparation or submission

of this brief.

2

clear intent to abrogate state immunity from suit in federal

court for copyright infringement, as reflected in the Copyright

Remedies Clarification Act, Pub. L. 101-553, 104 Stat. 2749

(1990), that law exceeded congressional power. To minimize

the impact of its holding and seemingly as a basis for its deci-

sion, the Chavez panel specifically noted that Congress could

confer jurisdiction on state courts to hear copyright

infringement suits. 157 F.3d at 291. Alden v. Maine calls that

assumption into direct question.

Amici here have filed a friend-of-the-court brief in

Chavez before the Fifth Circuit en banc, arguing (along with

the United States and other amici curiae) that subjecting states

to copyright infringement suits in federal court does not violate

the Eleventh Amendment, first, because legislation doing so is

within Congress’ power to enforce the Due Process Clause

under Section 5 of the Fourteenth Amendment, and second,

because the state’s own repeated use of the benefits afforded by

copyright law results in a waiver of Eleventh Amendment

immunity under the doctrine of Parden v. Terminal Railway of

Alabama, 377 U.S. 184 (1964). However, if the Fifth Circuit

ultimately holds that Congress has no power to subject states to

copyright infringement suits in federal courts, and if this Court

were to affirm that decision, then amici and other copyright

owners would have no remedy from unfettered state

infringement of copyright — unless Congress has the power to

subject states to infringement remedies in state courts.

The basic presuppositions of the rule of law would be

threatened if the Eleventh Amendment blocked Congress from

providing for infringement suits against state infringers in both

state and federal courts: notwithstanding Congress’s undoubted

power to subject states to the copyright law as a formal matter,

see Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528

(1985), overruling National League of Cities v. Usery, 426 US.

3

833 (1976), the courts would have deprived Congress of any

power to enforce compliance with it and to vindicate the rights

of those whose property states take by infringement. As this

Court noted in Marbury v. Madison, 5 U.S. 137 (1803), “[t}he

very essence of civil liberty certainly consists in the right of

every individual to claim the protection of the laws, whenever

he receives an injury,” and it is “[o]ne of the first duties of

government” to afford such protection. /d. at 163.

The same interests that have led the amici to argue for

preservation of federal court jurisdiction over copyright suits in

the Fifth Circuit in Chavez therefore lead them, anticipatorily

but urgently, to support petitioners’ position here. If a textually

unmoored Eleventh Amendment jurisprudence were to strike

down Congress’s effort to provide for damage suits against

state infringers in federal court, then amici would urge

Congress to abandon its 200-year historic policy of granting

federal courts exclusive jurisdiction over copyright cases and

to entrust such cases to state courts. Their interest here is in

leaving Congress with the power, granted by the Supremacy

Clause, effectively to do so.

SUMMARY OF ARGUMENT

The Supremacy Clause and this Court’s decision in

Hilton v. South Carolina Public Railways Commission, 502

U.S. 197 (1991), control the result in this case. Under Hilton,

where Congress intends to abrogate state sovereign immunity

in a federal statute, the Supremacy Clause requires a state court

to apply the statute against the state regardless of whether such

immunity is asserted. Hilton is consistent with both the struc-

ture of our federal system and with this Court’s precedents. On

its face and as interpreted by this Court, the Supremacy Clause

mandates that federal laws take precedence over state laws,

including state doctrines of sovereign immunity.

4

The Eleventh Amendment does not override the

Supremacy Clause with respect to sovereign immunity in state

courts. The Amendment restricts only federal court jurisdic-

tion, and says nothing about state courts. It did not adopt a

general principle of universally effective sovereign immunity,

as this Court’s prior decisions demonstrate. Nothing in this

Court’s recent decision in Seminole Tribe v. Florida, 517 U.S.

44 (1996), altered the scope of this Court’s prior Eleventh

Amendment jurisprudence in this regard.

In any event, Maine’s assertion of sovereign immunity

in the petitioners’ suit would result in the deprivation of

petitioners’ property (the compensation guaranteed by supreme

substantive federal law) without due process of law. Accord-

ingly, far from being beyond congressional power under the

emanations or presuppositions of the Eleventh Amendment, the

challenged provision of the Fair Labor Standards Act (FLSA),

29 U.S.C. §§ 201-19, creating a cause of action in state court

free of a sovereign immunity defense, is within not only

Congress’s power under the Commerce and Supremacy

Clauses, but also its power under Section 5 of the Fourteenth

Amendment to enforce the guarantee that no state shall deprive

any person of property without due process of law.

ARGUMENT

L. THE SUPREMACY CLAUSE MAKES THE FLSA FULLY

ENFORCEABLE IN MAINE’S COURTS, ASSERTIONS OF

SOVEREIGN IMMUNITY NOTWITHSTANDING.

There is no doubt in this case that Congress has the

authority to subject states to liability for violating the overtime

provisions of the FLSA. See Garcia v. San Antonio Metro.

Transit Auth., 469 U.S. 528, 554 (1985). The only question is

whether state courts are required to hear such suits: that is,

given that the State of Maine has been held immune from such

5

a suit in federal court, may Congress provide for the state court

adjudication of a claim Congress has the power to create?

A. Hilton v. South Carolina governs the result in this

case.

This Court’s decision in Hilton v. South Carolina

Public Railways Commission, 502 U.S. 197 (1991), is directly

applicable and controlling in this case. In Hilton, a South

Carolina state employee sued a state-owned railroad in South

Carolina court under the Federal Employers’ Liability Act

(FELA), 45 U.S.C. §§ 51-60. The trial court dismissed the suit

for lack of a clear statement in FELA of Congress’s intent to

abrogate South Carolina’s sovereign immunity. The South

Carolina Supreme Court upheld the dismissal, citing this

Court’s recent decision in Welch v. Texas Department of

Highways & Public Transportation, 483 U.S. 468 (1987), that

the remedial scheme used in FELA did not abrogate states’

Eleventh Amendment immunity in federal court. This Court

reversed the decision of the South Carolina Supreme Court,

holding, first, that the Eleventh Amendment did not apply to

state court suits, see Hilton, 502 U.S. at 204-05; second, that

under the applicable rules of statutory construction (including

stare decisis), Congress intended to subject states to suit under

FELA; and third, that the Supremacy Clause therefore made

FELA “fully enforceable in state court,” id at 207.

Hilton is directly applicable to the case at bar. Maine,

like South Carolina before it, has asserted that the FLSA does

not override its sovereign immunity in state court; that defense

is no more valid here than in Hilton. The Eleventh

Amendment, as the Hilton Court held, does not apply to state

courts. Furthermore, whereas the Hilton Court relied in part on

the principle of stare decisis in holding that Congress has

expressly sought to subject states to suit, here Congress’s intent

to subject the states to suit under the FLSA is unquestionable.

6

See Mills v. Maine, 118 F.3d 37, 42 (1st Cir. 1997) (citing

cases). Therefore, under Hilton, the FLSA, like FELA, is “fully

enforceable in state court,” assertions of state sovereign

immunity notwithstanding. Hilton, 502 U.S. at 207.

B. Hilton is consistent with the text of the Constitution

and with this Court’s precedents.

Hilton was not an anomalous decision, but rather was

deeply rooted in both the Constitutional framework of

federalism and in this Court’s prior decisions.

In our federal system both the states and the national

government retain some elements of sovereignty. The ultimate

sovereignty, however, is held not by the states or the national

government, but by the people. See U.S. Const. preamble (“We

the People . . . do ordain and establish this Constitution for the

United States of America.”); McCulloch v. Maryland, 17 U.S.

(4 Wheat.) 316, 403 (1819) (“The government proceeds directly

from the people . . . .”); The Federalist No. 84, at 513

(Alexander Hamilton) (Clinton Rossiter ed.) (“Here, in

strictness, the people surrender nothing . . . .”). The people

have delegated some powers to the national government and

some powers to their state governments. McCulloch, 17 U.S.

(4 Wheat.) at 410. While the people have decreed through the

Eleventh Amendment that, in some circumstances, states are

not subject to suit in federal courts, they have also decreed that

the Constitution and all laws passed pursuant to it are “the

supreme Law of the Land .. . , any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.” U.S.

Const. art. VI, cl. 2.°

The Supremacy Clause reads: “This Constitution, and the

Laws of the United States which shall be made in

Pursuance thereof . . . , shall be the supreme Law of the

7

This Court’s decision in Nevada v. Hall, 440 U.S. 410

(1979), demonstrates the limits of state sovereign immunity.

Given the fact that “[i)n this Nation each sovereign governs

only with the consent of the governed,” id. at 426, a state’s

desire to immunize itself from suit may be restricted by the

decisions of the people of other jurisdictions. The Hall Court

held that there was no constitutional bar based on Nevada’s

sovereign immunity that would prevent California’s subjecting

Nevada to a tort suit in California’s courts. “The people of

Nevada have consented to a system in which their State is

subject only to limited liability in tort. But the people of

California, who have had no voice in Nevada’s decision, have

adopted a different system. Each of these decisions is equally

entitled to our respect.” Jd The people of the United States

have adopted a different system with respect to the FLSA than

the people of Maine. And here, unlike in Hall, the decisions

are not equally entitled to the Court’s respect. The Supremacy

Clause demands that the decision of the people of the United

States takes precedence over that of the people of Maine.

Neither Maine, nor any other state, can reject the decision of

supreme federal law.

Since Maine’s courts must apply federal law, they must

subject the state to suit under the FLSA as that law requires. It

is beyond cavil that state courts have the power to decide

questions under federal law generally. See Palmore v. United

States, 411 U.S. 389, 402 (1973); Testa v. Katt, 330 U.S. 386,

390-91 (1947); Mondou v. New York, New Haven & Hartford

RR, 223 US. 1, 56 (1912); Martin v. Hunter’s Lessee, 14 U.S.

(1 Wheat.) 304, 342 (1816). Indeed, state courts have 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.” (Emphasis added.)

obligation to enforce federal law. See Howlett v. Rose, 496

U.S. 356, 370 (1990) (“[O]ur cases confirm that state courts

have the coordinate authority and consequent responsibility to

enforce the Supreme Law of the Land.”). And Congress has the

authority to create federal causes of action that the states will

enforce. See New York v. United States, 505 U.S. 144, 178

(1992) (referring to “the well established power of Congress to

pass laws enforceable in state courts.”). Anything less would

be inconsistent with the Supremacy Clause. See Printz v.

United States, __ U.S. __, 117 S. Ct. 2365, 2381 (1997);

New York, 505 U.S. at 178.

Under Howlett v. Rose, Maine’s courts cannot refuse to

apply the FLSA against the state, even if Maine does not

consent to suit. In Howlett, a Florida student sued his local

school board under 42 U.S.C. § 1983 for violating his civil

rights during a search of his car on school premises. This Court

held that although the state itself was not subject to suit under

§ 1983, due to a lack of proof of Congressional intent to that

effect, see Will v. Michigan Dep't of State Police, 491 U.S. 58

(1989), Florida could not immunize state agencies such as

school boards from such suits in state court. Howlett detailed

three corollaries of the Supremacy Clause that govern when a

state court must apply federal law against a state. First, “[a]

state court may not deny a federal right, when the parties and

controversy are properly before it, in the absence of a ‘valid

excuse.”” Howlett, 496 U.S. at 369 (quoting Douglas v. New

York, New Haven & Hartford R.R., 279 U.S. 377, 387-88

(1929)).

Second, “[a]n excuse that is inconsistent with or violates

federal law is not a valid excuse: the Supremacy Clause forbids

state courts to dissociate themselves from federal law because

of . . . a refusal to recognize the superior authority of its

source.” Jd. at 371. The refusal of the Maine Supreme Judicial

9

Court to apply the FLSA against the state was just such a

refusal to recognize the national government's superior

authority, since its decision was clearly inconsistent with the

FLSA’s provision that an employer includes any “public

agency.” See 29 U.S.C. § 203(d).

The third corollary from Howlett is that the Court must

proceed with caution when a state court refuses jurisdiction

“because of a neutral state rule regarding the administration of

the courts.” /d. at 371. To be sure, Congress cannot require a

state to “create a court competent to hear the case in which the

federal claim is presented.” /d ; see also Brown v. Gerdes, 321

U.S. 178, 190 (1944) (Frankfurter, J., concurring) (“Congress

may avail itself of state courts for the enforcement of federal

rights, but it must take the state courts as it finds them .. . .”).

But the mere fact that a state restriction on state courts is

termed “jurisdictional” does not make it a legitimate excuse not

to enforce federal law. Howlett, 496 U.S. at 381; see also id

at 382 (“The force of the Supremacy Clause is not so weak that

it can be evaded by mere mention of the word ‘jurisdiction.’”)

At the very least, states cannot refuse to hear an action solely

because it is based on federal law.’ Here, as in Howlett, Maine

> Howlett in fact went further, holding that a state court

could not add immunities or defenses beyond those

provided by the federal law. As noted above, the only

reason that a state can escape liability in state court from

§ 1983 actions is because this Court has held that states

were not intended by Congress to be sued under the

statute. See Will, 491 U.S. at 64. “If the [Florida] District

Court of Appeal meant to hold that governmental entities

subject to [federal law] liability enjoy an immunity over

and above those already provided in [the federal law], that

holding directly violates federal law.” Howlett, 496 U.S.

10

defendants for the withholding of just compensation. Maine’s

refusal, therefore, to allow federal law actions under the FLSA

against state defendants is, as was the similar refusal in

Howlett, a “violat[ion of] the Supremacy Clause.” /d at 375.

State courts must apply federal law to the states unless a consti-

tutional or other legitimate doctrine bars such enforcement.

This Court’s decisions in Hilton, Hall, and Howlett thus

decisively reject the notion that, as the court below held, state

sovereign immunity has been incorporated into the

Constitution, either in the Eleventh Amendment or elsewhere,

in such a way as to bar suits against states under federal laws in

their own courts. The idea emerging instead from this Court’s

precedents and from the structure of the federal system is that

state sovereign immunity is a creation of state law, enforceable

only as permitted by the Supremacy Clause, and not a timeless

command that trumps federal substantive law or prevents its

enforcement. See Hail, 440 U.S. at 426 (finding that no federal

rule implicit in the Constitution requires adherence to state sov-

ereign immunity doctrine as it existed when the Constitution

was adopted); Howlett, 496 U.S. at 383 (“[I}ndividual States

may not exempt . . . persons from federal liability by relying on

their own common law heritage. . .. States would then be free

to nullify for their own people the legislative decisions that

Congress has made on behalf of all the People.”).

Under the Supremacy Clause, no state law can override

a federal statute passed pursuant to the Constitution. Neither

a state statute, nor the common law, nor even the state’s

at 375; see also id. at 379-80 (Florida court cannot reject

§ 1983 claim when it adjudicates other claims against state

entities, even if “for substantive policy reasons” it does not

hear all such claims).

Il

constitution can have such an effect. It does not matter how

important the inconsistent law in question might be to the state.

“(T]he relative importance to the State of its own law is not

material when there is a conflict with a valid federal law,’ for

‘any state law, however clearly within a State’s acknowledged

power, which interferes with or is contrary to federal law, must

yield."” Felder v. Casey, 487 U.S. 131, 138 (1988) (quoting

Free v. Bland, 369 U.S. 663, 666 (1962)).

States may, of course, waive their sovereign immunity

and consent, via statute or other legal device, to be sued in Weir

own courts. See Seminole, 517 U.S. at 65 (citing Parden v.

Terminal Ry. of Ala., 377 U.S. 184 (1964)). And since under

the Supremacy Clause a federal statute has the same effect in

State court as state law (including state constitutional law),

there is no reason why such a statute could not abrogate a

state’s power to assert immunity in its own courts just as a state

statute or constitutional amendment might. “Federal law is

enforceable in state courts because the Federal Constitution and

laws passed pursuant to it are as much laws in the states as are

laws passed by the state legislature.” Howlett, 496 U.S. at 367

(emphasis added) “The two together form one system of

jurisprudence, which constitutes the law of the land for the

State ...." Claflin v. Houseman, 93 U.S. 130, 137 (1876).

Obviously, given that the national and state governments are

distinct, there is the potential for inconsistencies in such a

system. That is what the Supremacy Clause resolves. Federal

law is supreme over inconsistent state law, including state laws

Of course, to ensure that Congress truly intended to

subject states to suit, such a statute must contain the necessary

“clear statement” of Congress's intent to do so. See Will, 491

U.S. at 65 (holding that whenever Congress “intends to alter the

‘usual constitutional balance between the States and the Federal

12

Government,’ it must make its intention to do so ‘unmistakably

clear in the language of the statute’”). But as noted above,

there is no doubt here that Congress made the necessary clear

statement. Mills, 118 F.3d at 42. Because Congress clearly

intended to subject states to suit under the FLSA, the FLSA is

just as much a part of state law as any state statute or

constitution, and it abrogates state sovereign immunity in

Maine’s courts just as would a Maine statute passed to the same

effect.

It matters not that Maine may object to being sued

under a federal statute. A state cannot resist enforcing federal

law in its courts simply because the law “is not in harmony

with the policy of the State.” Mondou, 223 U.S. at 57. This is

true whether the perceived conflict is over the substantive law

or over what the appropriate forum for a certain right is. See

Howlett, 496 U.S. at 375; see also Martinez v. California, 444

U.S. 277, 284 n.8 (1980) (quoting McLaughlin v. Tilendis, 398

F.2d 287, 290 (7th Cir. 1968)) (“A construction of the federal

statute which permitted a state immunity defense to have

controlling effect would transmute a basic guarantee into an

illusory promise; and the supremacy clause of the Constitution

insures that the proper construction may be enforced.”). As

long as Congress has the authority to subject states to liability

in a certain area, and makes its intent to do so clear in the

language of the statute, “the Supremacy Clause makes that

Statute the law in every State, fully enforceable in state court.”

Hilton, 502 U.S. at 207.

Finally, Hilton and Howlett are not inconsistent with

decisions holding that Congress cannot command state

legislatures or executive officers to enforce a federal regulatory

scheme. This Court has specifically limited its holdings in

such cases to lawmakers and executive officers, noting that

state judges are bound by the Supremacy Clause to apply

13

federal law. See Printz, 117 S. Ct. at 2371 (“It is understand-

able why courts should have been viewed distinctively in this

regard; unlike legislatures and executives, they applied the law

of other sovereigns all the time”); New York v. United States,

505 U.S. 144, 178 (1992) (“Federal statutes enforceable in state

courts do, in a sense, direct state judges to enforce them, but

this sort of federal ‘direction’ of state judges is mandated by the

text of the Supremacy Clause”); see also Printz, 117 S. Ct. at

2381 (noting that Federal Energy Regulatory Commission v.

Mississippi, 456 U.S. 742 (1982), “required state administrative

agencies to apply federal law while acting in a judicial

capacity”).

This Court should therefore hold that Maine cannot

assert a defense of sovereign immunity to enforcement of the

FLSA.

Il. THE ELEVENTH AMENDMENT Does NOT APPLY TO

SurTs AGAINST STATES IN STATE COURTS.

The court below failed to even consider the Supremacy

Clause, see Alden v. State, 715 A.2d 172, 177 (Me. 1998)

(Dana, J., dissenting), basing its decision instead entirely on the

Eleventh Amendment. As even that court admitted, however,

“the Eleventh Amendment is not directly applicable to state

courts.” /d. at 174 (quoting Moody v. Commissioner, Dep't of

Human Servs., 661 A.2d 156, 158 n.3 (Me. 1995)). The

holding below that the Eleventh Amendment reflects a broad

principle of reserved states’ rights that leaves Congress as

powerless to abrogate state sovereign immunity in state courts

as in federal courts, and the conclusion that to hold otherwise

would “effectively vitiate the Eleventh Amendment,” id. at 174-

75, are insupporiable.

14

A. The Eleventh Amendment restricts only federal

judicial power.

This Court has repeatedly held that the Eleventh

Amendment has no application to state courts, and has never

adopted the principle of symmetry between state sovereign

immunity in federal and state courts that the court below

viewed as controlling. The Eleventh Amendment restricts

only federal court jurisdiction under Article III, not state court

jurisdiction. “The Judicial power of the United States shall not

be construed to extend to any suit in law or equity, commenced

or prosecuted against one of the United States by Citizens of

another State, or by Citizens or Subjects of any Foreign State.”

Of course, it is true that this Court has stated that the

Eleventh Amendment embodies a broader principle than its

mere textual provisions. The Court has thus “understood the

Eleventh Amendment to stand not so much for what it says, but

for the presupposition . . . which it confirms.” Seminole Tribe

v. Florida, 517 U.S. 44, 54 (1996) (quoting Blatchford v.

Native Village of Noatak, 501 U.S. 775, 779 (1991)). Applying

this logic, the Court has held (without textual warrant) that

suits by citizens of a state against their own state under federal

question jurisdiction in a federal court have been held to be

barred under the Amendment. See Hans v. Louisiana, 134 U.S.

1, 13 (1890). But while there have been broad statements in

dicta to the effect that the Amendment stands for the principle

that “[ijt is inherent in the nature of sovereignty not to be

amenable to the suit of an individual without its consent,” id,

* See Alden, 715 A.2d at 174. Hilton explicitly rejected

such a theory. Although “not . . . inconsequential,” the rule

favoring symmetry can be overcome. Hilton, 502 U.S. at

206.

15

none of these statements control the result here or invalidate

Hilton or purport to overwhelm the Supremacy Clause.’

As this Court noted in Nevada v. Hall, cases such as

Hans, while “emphasiz[ing] the widespread acceptance of the

view that a sovereign State is never amenable to suit without its

consent,” all concerned the limits of federal court jurisdiction,

and do not answer questions relating to sovereign immunity in

state courts. See Hall, 440 U.S. at 420-21. Instead, this Court

has uniformly denied that the Eleventh Amendment provides

any guidance on the question of whether a state can assert

immunity from a federal action in state courts. “[A]s we have

stated on many occasions, ‘the Eleventh Amendment does not

apply in state courts.” Hilton, 502 U.S. 204-05; see also Will

v. Michigan Dep't of State Police, 491 U.S. 58, 63-64 (1989)

(“[T]Jhe Eleventh Amendment does not apply in state courts.”);

Maine v. Thiboutot, 448 U.S. 1, 9 n.7 (1980) (“No Eleventh

Amendment question is present, of course, where an action is

brought in a state court since the Amendment, by its terms,

restrains only ‘[t}he Judicial power of the United States.’”);

Hall, 440 U.S. at 420-21. The only issue posed by the Eleventh

Amendment is “the susceptibility of the States to suit before

federal tribunals”; the Amendment does not provide for “the

general immunity of the States from private suit.” Alascadero

* Respondent’s best argument based on this Court’s prior

opinions are based on four words in Hess v. Port Auth.

Trans-Hudson Corp., 513 U.S. 30, 39 (1994): “The

Eleventh Amendment largely shields States from suit in

federal court without their consent, leaving parties with

claims against a State to present them, if the State permits,

in the State’s own tribunals.” (Emphasis added.) These

four words of dicta are far too anorectic a basis to hold that

Hilton and Howlett have been implicitly overruled.

16

State Hosp. v. Scanlon, 473 U.S. 234, 240 n.2 (1985) (quoting

Employees v. Missouri Dep't of Pub. Health & Welfare, 411

U.S. 279, 293-94 (1983) (Marshall, J., concurring)). Consistent

with this view, the federal courts have assumed, in the case of

the FLSA, that a litigant barred by the Eleventh Amendment in

federal court could nevertheless sue in state court. See Aaron

v. Kansas, 115 F.3d 813, 817 (10th Cir. 1997); Wilson-Jones v.

Caviness, 99 F.3d 203, 211 (6th Cir. 1996). Indeed, this point

is so obvious that this Court has stated that “[i]t denigrates the

judges who serve on the state courts” to suggest that they will

fail to grasp it. Atascadero, 473 U.S. at 240 n.2.

Not every statement in a judicial opinion is a measured

demarcation of constitutional limits. For example, this Court

declared in Hans that “[i]t may be accepted as a point of

departure unquestioned . . . . that neither a State nor the United

States can be sued as defendant in any court in this country

without their consent” except under the Supreme Court’s

original jurisdiction. 134 U.S. at 17 (quoting Cunningham v.

Macon & Brunswick R.R., 109 U.S. 446, 451 (1883)). Yet this

Court has several times since allowed unwilling states to be

sued in various tribunals, all without overruling Hans. See,

e.g., California & State Lands Comm'n v. Deep Sea Research,

__ U.S. __, 118 S. Ct. 1464 (1998) (in rem admiralty case);

Hilton, 502 U.S. 197 (allowing suit under federal law in state

court); Hall, 440 U.S. 410 (allowing suit in another state’s

courts); Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) (immunity

abrogated under Fourteenth Amendment); Parden v. Terminal

Ry. of Ala., 377 U.S. 184 (1964) (constructive waiver). And

while it may generally be true that, as this Court recently stated,

the Eleventh Amendment “serves to avoid ‘the indignity of

subjecting a State to the coercive process of judicial tribunals

at the instance of private parties,” Seminole, 517 U.S. at 58

(quoting Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &

Eddy, Inc., 506 U.S. 139, 146 (1993)), the numerous cases

17

subjecting states to suit indicate that indignity avoidance is not

the paramount concern of our federal system.

If statements such as those cited above were given

literal effect, similar statements that the Fourteenth

Amendment “operated to alter the pre-existing balance between

state and federal power achieved by Article III and the Eleventh

Amendment,” Seminole, 517 U.S. at 65-66, could be interpreted

as granting unlimited power to the federal government. In fact,

neither principle is without limits, as this Court has consistently

recognized. See City of Boerne v. Flores, 521 U.S. 507 (1997).

The limits of state sovereign immunity lie in the text of the

Supremacy Clause and in this Court’s actual holdings, such as

those in Hilton, Howlett, and Hail, not in the dicta used in those

or other cases.

B. Seminole did not hold the Eleventh Amendment

effective in state courts or superior to the

Supremacy Clause.

Nothing in Seminole overruled this Court’s prior

holding in Hilton subjecting states “fully” to suit in state court

under federal law. Although this Court stated in Seminole, in

dicta, that the Eleventh Amendment derived from the

“background principle” of state sovereign immunity, Seminole,

517 U.S. at 72, Seminole’s holding was consistently limited to

“prohibit[ing] Congress from making the State of Florida

capable of being sued in federal court.” Jd. at 76; see also id.

at 54 (“For over a century we have reaffirmed that federal

jurisdiction over suits against unconsenting States “was not

contemplated by the Constitution when establishing the judicial

power of the United States.’”) (citing Hans, 134 U.S. at 15); id.

at 63 (“It [is] well established . . . that the Eleventh Amendment

[stands] for the constitutional principle that state sovereign

immunity limit[s} the federal courts’ jurisdiction under Article

III.”); id. at 64 (“The Eleventh Amendment restricts the judicial

18

power under Article III, and Article I cannot be used to

circumvent the constitutional limitations placed upon federal

jurisdiction.”); id. at 72 (referring to statements of Framers “the

most natural reading of which would preclude all federal

jurisdiction over an unconsenting State”).

Ill. BECAUSE MAINE’S REFUSAL TO AWARD IN STATE

COURT THE WAGES CONCEDEDLY REQUIRED BY

FEDERAL LAW WOULD VIOLATE THE DUE PROCESS

CLAUSE, CONGRESS MAY CONSTITUTIONALLY

SUBJECT MAINE TO SUIT IN STATE COURT FOR THOSE

WAGES FREE OF ANY SOVEREIGN IMMUNITY

DEFENSE.

Maine’s assertion of sovereign immunity as a defense

to Alden’s FLSA claim has resulted in a deprivation of Alden’s

property without due process of law, in violation of the

Fourteenth Amendment.

This Court has long held that where a state deprives an

individual of property in violation of federal law, and then fails

to offer a sufficient state court remedy, such a deprivation

violates the guarantees of the Fourteenth Amendment. For ex-

ample, “‘a denial by a state court of a recovery of taxes exacted

in violation of the laws or Constitution of the United States by

compulsion is . . . itself in contravention of the Fourteenth

Amendment,’ the sovereign immunity States traditionally enjoy

in their own courts notwithstanding.” Reich v. Collins, 513

U.S. 106, 109-10 (1994) (quoting Carpenter v. Shaw, 280 U.S.

363, 369 (1930)); see also McKesson Corp. v. Division of

Alcoholic Beverages & Tobacco, 496 U.S. 18, 31 (1990)

(collection of tax without state law remedy is violation of

Fourteenth Amendment); Ward v. Board of County Comm'rs,

253 U.S. 17, 24 (1920) (same).

19

Reich v. Collins involved a taxpayer who sought

recovery of income taxes collected by the State of Georgia in

violation of federal law. In Reich, as here (and as would be the

case if Congress were eventually forced by adverse decision in

Chavez to grant state courts jurisdiction over copyright

infringement actions against state infringers), the claimant was

barred from federal court because of the state’s Eleventh

Amendment defense. See Reich, 513 U.S. at 110. This Court

unanimously reversed the decision of the Georgia Supreme

Court and remanded the case for “meaningful” retrospective

relief, notwithstanding any assertion of state sovereign

immunity. See id. at 109-10, 114. Sovereign immunity is

likewise no bar to an action for compensation for a taking

under the Fifth Amendment. See First English Evangelical

Lutheran Church v. County of Los Angeles, 482 U.S. 304, 316

n.9 (1987).

Maine’s refusal to pay for overtime required by federal

law is not distinguishable from Georgia’s refusal to pay a tax

refund required by federal law. In either case, a state has

wrongfully deprived a plaintiff of property without remedy, and

therefore without due process. Depriving persons of any

effective remedy whatever for undoubted violations of law is

the most serious kind of violation of the rule of law, as the

Court’s unanimous ruling in Reich v. Collins makes clear. See

also Florida Dep't of State v. Treasure Salvors, Inc., 458 U.S.

670, 697 (1982) (“If the Constitution provided no protection

against such unbridled authority, all property rights would exist

only at the whim of the sovereign”).

While Reich and First English Evangelical Lutheran

Church appear to provide authority for insisting that Maine’s

courts create for Alden and those similarly situated a cause of

action and a remedy, none is needed here. Under the

circumstances, the evident due process violation created by

“

20

recognition of state sovereign immunity in state court from the

petitioners’ suit for recovery of their withheld overtime

payments makes plain that the remedy chosen by Congress is

within Congress’s power under section 5 of the Fourteenth

Amendment (the “Enforcement Clause”), which gives Congress

the power to enforce, by “appropriate legislation,” the

prohibition against state deprivation of property without due

process of law. Where, as in the FLSA, such legislation does

not attempt to expand the scope of any substantive

constitutional rule or otherwise encroach on state authority, but

only ensures the very judicial remedy, in the state’s own courts,

that the Constitution requires (namely restoration of the

property interest of which the state has wrongfully and without

due process deprived the plaintiff), it is “appropriate” and well

within congressional power. See, e.g., City of Boerne v. Flores,

521 U.S. 507 (1997); Katzenbach v. Morgan, 384 U.S. 641

(1966).

CONCLUSION

The judgment of the Maine Supreme Judicial Court

should be reversed.

Respectfully Submitted.

Charles S. Sims

Counsel of Record

Bruce E. Boyden

Proskauer Rose LLP

1585 Broadway

New York, NY 10036

(212) 969-3950

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