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[Alden v. State dissenting opinion:]

DANA, J., with whom RUDMAN, J., joins, dissenting.

	[¶14]  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 U.S. 44 (1996), precludes Alden from prosecuting
this action in federal court, neither Seminole Tribe nor the Supremacy
Clause permits the State to interpose its sovereign immunity 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.
	[¶15]  Pursuant to the FLSA, an employee may bring an action 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 congressional intent to abrogate the states'
immunity from suit.  The Court concludes that Congress lacks the authority
to abrogate the states' immunity from FLSA actions prosecuted in state
courts by relying on Seminole Tribe, a reliance that is misplaced. 
	[¶16]  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 (1976); and the Interstate Commerce
Clause, see Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989).  See Seminole
Tribe, 517 U.S. at 59.  The Court agreed with the Seminole Tribe's
contention that "'[t]here is no principled basis for finding that congressional
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 constitutional principle that the Eleventh Amendment "limited
the federal courts' jurisdiction under Article III," and it rejected the
conclusion of the Union Gas plurality "that Congress could under Article I
expand the scope of the federal courts' jurisdiction under Article III."  Id. at
63.  The Court emphasized that "Article I cannot be used to circumvent the
constitutional limitations placed upon federal jurisdiction."  Id. at 73.  
	[¶17]  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 decision 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," Hilton v. South
Carolina Pub. Ry. Comm'n, 502 U.S. 197, 205 (1991).  See also Bunch v.
Robinson, No. 1754, Sept. Term, 1997, 1998 WL 348429, at *11 (Md. Ct.
Spec. App. July 1, 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 (1991),
sheds considerable light on our inquiry.
	[¶18]  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 railway business.  See Parden v. Terminal Ry. of Alabama
Docks Dep't, 377 U.S. 184 (1964).  The Court reconsidered the Parden
holding in 1987, however, and concluded that FELA, as incorporated by the
Jones Act, 46 U.S.C. app. § 688 (Supp. 1998), did not abrogate states'
Eleventh Amendment immunity.  See Welch v. Texas Dep't of Highways and
Pub. Transp., 483 U.S. 468 (1987).  
	[¶19]  Rejecting a contention that the Welch decision controlled 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 suit would strip all FELA
and Jones Act protection from workers employed by the States,
was not addressed 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 coverage, 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 fundamental respect:  The latter cases involve the application of a
rule of constitutional law, while the former case[] appl[ies] an ordinary rule
of statutory construction."  Id. 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 language and history" of the statute.  Id. at 205.   The Court
cautioned that although the scope of Eleventh Amendment immunity is "a
relevant consideration," achieving symmetry between a state's liability in
state and federal courts should not be imperative.  Id. 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."  Id. at 207.
	[¶20]  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, 962 S.W.2d 773 (Ark. 1998).  In Jacoby,
the court concluded that neither the Eleventh Amendment nor the
sovereign immunity provision of the Arkansas Constitution{2} prevents state
employees from maintaining an FLSA cause of action against the state in
state court.  See id. 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 immunize the state from an FLSA action in state
court); Bunch, 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 observed 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.
	[¶21]  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 (1985), reh'g
denied, 471 U.S. 1049 (1985).{3}  Pursuant to the Supremacy Clause, "[t]his
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 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, 
[f]ederal 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 enforce that law according to their regular modes of

496 U.S. 356, 367 (1990).  "[W]hen 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, 1998 WL 348429, at *5.  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.  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 concluding, "[t]o the extent that the
Florida law of sovereign 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.").
	[¶22]   A determination that the Supremacy Clause requires states to
defend FLSA causes of action that are prosecuted 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 federally-created cause of action against it. 
The FLSA's express authorization of suits against state employers in state
courts constitutes an explicit statement of congressional 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
congressional intent to abrogate states' immunity, then a state could
successfully interpose its sovereign immunity as a defense to that cause of
action.{4}  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 statement 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.").
	[¶23]  I would vacate the judgment of the Superior Court.

Attorneys for plaintiffs: Donald F. Fontaine, Esq., (orally) Lynne A. Gardner, Esq. Fontaine & Beal, P.A. P O Box 7590 Portland, ME 04112 Timothy L. Belcher, Esq. Maine State Employees Ass'n 65 State Street Augusta, ME 04330 Larry Engelstein, Esq. Kathy Krieger, Esq. Office of the General Counsel A.F.L.-C.I.O. 815 16th Street, N.W., Suite 807 Washington, DC 20006 Attorneys for defendants: Andrew Ketterer, Attorney General Peter J. Brann, Asst. Atty. Gen., (orally) 6 State House Station Augusta, ME 04333-0006 Attorneys for amicus curiae: Robert M. Loeb, Esq., (orally) Civil Division, Appellate Staff U.S. Dept. of Justice 601 D Street, N.W., Rm. 9532 Washington, DC 20530-0001 Ellen L. Beard, Esq. Office of the Solicitor U. S. Department of Labor 200 Constitution Ave., N.W., Rm. 2700 Washington, DC 20210
FOOTNOTES******************************** {1}. Alden is joined by 66 additional plaintiffs, all present or former state probation officers. For clarity, and because the central issue on appeal is identical for all plaintiffs, we refer only to Alden. {2}. Pursuant to Article 5, section 20 of the Arkansas Constitution, "[t]he State of Arkansas shall never be made a defendant in any of her courts." {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 minimum-wage requirements of the FLSA . . . that is destructive of state sovereignty or violative of any constitutional provision." Id. at 554. {4}. Similarly, the Maine Legislature may waive the State's sovereign 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 giv[ing] 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 sovereign immunity.

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