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Alden v. State
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 200
Docket:	Cum-97-446
Argued:	February 3, 1998
Decided:	August 4, 1998

Dissenting:	RUDMAN and DANA, JJ.



	[¶1]  John H. Alden{1} appeals from the judgment of the Superior Court
(Cumberland County, Calkins, J.) dismissing on the basis of sovereign
immunity his complaint brought pursuant to the federal Fair Labor Standards
Act.  Alden contends that the doctrine of sovereign immunity may not be
interposed to defend against this federally created cause of action.  We
affirm the judgment.  
	[¶2]  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 Standards 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 (1996), which held, on the basis of the
Eleventh Amendment to the United States Constitution, that Congress may
not authorize pursuant to its Article I powers suits in federal court by private
parties against unconsenting states.  Id. 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 WL 400510 (D. Me. July 3, 1996),
aff'd, 118 F.3d 37 (1st Cir. 1997).  
	[¶3]  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
	[¶4]  The principal issue before us is whether state sovereign
immunity, as reflected in the Eleventh Amendment, protects 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 intended 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.  
	[¶5]  The Eleventh Amendment provides:  "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."  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 (quoting Blatchford v. Native Village of Noatak, 501 U.S. 775, 779
(1991)).  That presupposition consists of two elements:  "that each State is a
sovereign entity in our federal system ... and ... that '[i]t 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).  
		[¶6]  We have concluded on several occasions that sovereign immunity
does protect the State from suit by private parties 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 government in paying medical care costs of certain
recipients of federal aid constituted a waiver of state sovereign immunity. 
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.  Id. at
	[¶7]  In Thiboutot v. State, 405 A.2d 230 (Me. 1979), aff'd on other
grounds, 448 U.S. 1 (1980), we addressed the amenability of the State to
suits by private parties for retroactive AFDC benefits 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 ... § 1983."Id. at 237.  Similarly,
in Jackson v. State, 544 A.2d 291 (Me. 1988) cert. denied, 491 U.S. 904
(1989), addressing the State's amenability to suit under the federal
Rehabilitation 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."  Id. at 298.  Most
recently, Moody v. Commissioner, Dept. of Human Servs., 661 A.2d 156 (Me.
1995), concerned the AFDC program and a violation 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 Amendment to the United States
Constitution precludes the federal courts from circumventing the sovereign
immunity of the states.  Although the Eleventh Amendment is not directly
applicable to state courts, the doctrine of sovereign immunity similarly
protects the states from actions [in] state courts."  Id. at 158 n.3 (citation
	[¶8]  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 Eleventh Amendment and state
sovereign immunity are analogous, 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 Amendment.  
	[¶9]  The Supreme Court's opinion in Seminole Tribe reinforces this
position.  The Court began its analysis with the general proposition that in
order to abrogate a state's sovereign immunity Congress must have
"'unequivocally express[ed] its intent to abrogate the immunity,'" and must
have done so "'pursuant to a valid exercise of power.'"  Seminole Tribe, 517
U.S. at 55 (quoting Green v. Mansour, 474 U.S. 64, 68 (1985)).  Addressing
the first element, the Court concluded that it is "indubitable that Congress
intended through the [FLSA] to abrogate the States' sovereign immunity
from suit."  Id. at 57.  
	[¶10]  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 of
subjecting a State to the coercive process of judicial tribunals at the instance
of private parties.'"  Id. at 58 (quoting Puerto Rico Aqueduct & Sewer Auth.
v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993)).  To suggest, as Alden
has done, that this indignity would be lessened by simply dragging the State
into a different forum misconstrues the underlying premise of the Eleventh
	[¶11]  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 (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 oft-
repeated understanding of state sovereign immunity as an essential part of
the Eleventh Amendment."  Seminold Tribe, 517 U.S. at 66.  The Court
Behind the words of the constitutional provisions are postulates
which limit and control.  ...  There 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.  
Id. at 68 (quoting Principality of Monaco v. Mississippi, 292 U.S. 313, 323
(1934) (internal quotation and citation omitted)).  The postulate at work
here, state sovereign immunity, is a "background principle" that is
"embodied in the Eleventh Amendment."  Id. at 72.  Thus the Eleventh
Amendment does not delimit the scope and effect of state sovereign
immunity.  Rather, it reflects but one aspect of the states' inherent, more
sweeping immunity from suits brought by private parties.  A power so basic
and profound would be an odd power indeed if it protected the states from
suit in the federal courts but provided no comparable protection in their
own courts.  If Congress does not have the power to abrogate state sovereign
immunity 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.  Accordingly, we conclude that sovereign immunity protects the State
from defending this federal cause of action in its own courts.  
	[¶12]  Alden contends, in the alternative, that the State has waived its
sovereign immunity by implication, having enacted several statues 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 employees 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 provides, "The overtime provision of this section
does not apply to [p]ublic employees," id., who are defined as "any person[s]
whose wages are paid by ... the State."  Id.  § 663(10) (1988).  
	[¶13]  We have stated that in the absence of a specific statutory waiver
of immunity, "a legislative waiver of the sovereign's immunity from suit may
be found implicit in a general scheme plainly contemplating that the State
will become party to particular kinds of contracts."  Drake, 390 A.2d at 545. 
In the present instance, however, it is impossible to find an implied waiver
in a larger statutory scheme when the Legislature has spoken explicitly on
the point.  Any implications of these statutory provisions are limited by the
Legislature's unambiguous statement that the State is not subject to the
overtime requirement.  
	The entry is: 
				Judgment affirmed.  

To the dissenting opinion.

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