Jacoby v. Arkansas Dept. of Educ., Vocation and Technical Educ. Div.

Decision Date19 February 1998
Docket NumberNo. 97-310,97-310
Citation962 S.W.2d 773,331 Ark. 508
CourtArkansas Supreme Court
Parties, 135 Lab.Cas. P 33,658, 4 Wage & Hour Cas.2d (BNA) 686 Richard JACOBY, Freddie Mae Green, Curtis Ivy, Jean Marrow, Elsie Sanchez, Evan Sanders, George Thomas, Barbara Whittaker and Shirley Williams, Appellants, v. ARKANSAS DEPARTMENT OF EDUCATION, VOCATIONAL AND TECHNICAL EDUCATION DIVISION, Appellee.

John L. Burnett, Little Rock, for appellants.

Winston Bryant, Atty. Gen., Kay J. Jackson Demailly, Asst. Atty. Gen., Little Rock, for appellee.

BROWN, Justice.

The appellants in this case (the employees) are hourly-paid employees of the Vocational and Technical Education Division of the Arkansas Department of Education (the Department). Their complaint is based on an allegation that the State, through the Department, has failed to pay them for all of the time they have worked. Specifically, they claim that they remained on duty each day for an eight and one-half hour shift but were paid for only eight-hour days.

The employees originally filed their complaint in federal district court and alleged a violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219 (1994 & Supp. I 1995). The Department moved to dismiss for lack of subject-matter jurisdiction, claiming that the United States Congress could not abrogate Eleventh Amendment sovereign immunity for the Department by enacting the FLSA pursuant to the Commerce Clause of the U.S. Constitution. The employees filed a voluntary nonsuit before the motion to dismiss was decided.

The employees next filed this action in state circuit court, claiming once again a violation of the FLSA by the Department. The Department moved to dismiss based on Eleventh Amendment sovereign immunity as set out in the U.S. Constitution and state sovereign immunity under Article 5, Section 20 of the State Constitution. The Department argued that the Claims Commission had exclusive jurisdiction over all suits against the State under Ark.Code Ann. § 19-10-204(a)(Repl.1994). The circuit court granted the Department's motion to dismiss due to sovereign immunity as provided in the State Constitution and found that the Claims Commission was the proper forum for resolution of this matter.

The question before this court is whether the circuit court correctly determined that the State Constitution bars a suit against the State when a federal claim such as one brought under the FLSA is at issue. A corollary issue is whether the Eleventh Amendment immunes the State from liability in its own courts when the federal right cannot be pursued in federal courts. We consider the corollary issue first.

a. Eleventh Amendment Sovereign Immunity.

The Eleventh Amendment reads as follows:

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.

The Eleventh Amendment expressly refers to the judicial power of the United States. It has been construed to grant the individual states immunity in federal court unless Congress by law abrogates that immunity or the state waives that immunity. Welch v. Texas Dep't of Highways & Pub. Trans., 483 U.S. 468, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987); Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). It is clear in this case that the Department has not waived its sovereign immunity, and that is not an issue before us. In Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), the U.S. Supreme Court expanded the Eleventh Amendment immunity of the states to exclude all suits by citizens of the same state in federal court.

The issue of whether Congress has effectively abrogated state sovereign immunity in federal courts for FLSA claims was effectively decided by the U.S. Supreme Court in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). In Seminole Tribe, the Court held that Congress can only void Eleventh Amendment immunity by enacting law that meets two requirements. First, Congress must "unequivocably express its intent to abrogate the immunity." Seminole Tribe, 517 U.S. at 55, 116 S.Ct. at 1123. It is undisputed in this case that Congress clearly intended to subject states, as employers, to FLSA claims in both federal courts and state courts. See 29 U.S.C. § 216(b). Secondly, according to Seminole Tribe, Congress must enact the abrogating law pursuant to a valid exercise of authority granted it under the U.S. Constitution. In Seminole Tribe, the Court held that Congress failed to meet this second criterion. The congressional act at issue required the states to enter into mediation on Indian claims and was passed under the power given Congress to regulate commerce with Indian tribes. U.S. Const. art 1 § 8. This power was not sufficient, according to the Court, to override the states' Eleventh Amendment protection against being sued for these claims in federal court.

But the Court in Seminole Tribe went further and overturned its decision in Pennsylvania v. Union Gas, 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), where a plurality of the Court had previously determined that the Commerce Clause provided proper authority for Congress to abrogate Eleventh Amendment immunity for the states in federal court. The Commerce Clause was the authority by which Congress provided for FLSA claims to be filed in state and federal courts. Hence, in the wake of Seminole Tribe, jurisdiction of the federal courts over state employers for FLSA claims appeared to no longer exist, and several U.S. Courts of Appeal have concluded that is precisely the case. See Close v. New York, 125 F.3d 31 (2nd Cir.1997); Mills v. Maine, 118 F.3d 37 (1st Cir.1997); Moad v. Arkansas State Police Dept., 111 F.3d 585 (8th Cir.1997). We agree that Seminole Tribe v. Florida, supra, has effectively immuned state employers from FLSA claims in federal court.

The next question is whether the Eleventh Amendment provides a corresponding immunity for a state employer sued for an FLSA violation in its own courts. A commentator on this subject recently framed the issue thusly:

Is the immunity conferred on the states by the Eleventh Amendment an immunity from liability under federal law, or is it merely an immunity from the jurisdiction of the federal courts?

Carlos Manual Vazquez, What is Eleventh Amendment Immunity?, 106 YALE L.J. 1683, 1700 (1997).

In Hilton v. South Carolina Public Railways Comm'n, 502 U.S. 197, 112 S.Ct. 560, 116 L.Ed.2d 560 (1991), the Court made the point emphatically that the Eleventh Amendment does not apply to state courts. Hilton, 502 U.S. at 204-05, 112 S.Ct. at 565, citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980); Nevada v. Hall, 440 U.S. 410, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979). Indeed, the Court in Hilton said that it had noted this inapplicability "on many occasions[.]" Hilton, 502 U.S. at 205, 112 S.Ct. at 565. We deem it well nigh impossible, in the face of this clear statement, for this court to accept the Department's argument that the Eleventh Amendment provides immunity in state courts as well. We hold that the Eleventh Amendment does not grant states immunity in their own courts, as the Court's pronouncement in the Hilton case makes abundantly clear. We reiterate that by its own terms the Eleventh Amendment is limited to the judicial power of the United States.

b. State Sovereign Immunity.

We are left then with the crucial issue of state sovereign immunity granted the State of Arkansas by its own State Constitution. Article 5, § 20 of the State Constitution reads: "The State of Arkansas shall never be made a defendant in any of her courts." We have held that this protection fully protects the State absent a waiver or consent by the State to be sued. See, e.g., Cross v. Arkansas Poultry & Livestock Comm'n, 328 Ark. 255, 943 S.W.2d 230 (1997). There is no issue of waiver or consent by the Department in the case before us. It relies, rather, on its immunity granted under the State Constitution as a shield against the FLSA claim.

The formidable hurdle that the Department must leap to prevail is the Supremacy Clause of the U.S. Constitution. U.S. Const. art. 6. When Congress enacted the FLSA, this became the supreme law of the land. The U.S. Supreme Court has stated that federal law is treated "as much [the] law in the States as laws passed by the state legislature." Howlett v. Rose, 496 U.S. 356, 367, 110 S.Ct. 2430, 2438, 110 L.Ed.2d 332 (1990). The FLSA states that actions "may be maintained against any employer, (including a public agency) in any Federal or State court of competent jurisdiction[.]" 29 U.S.C. § 216(b). The employees contend that though Congress did not have the authority to abrogate Eleventh Amendment immunity for the states in federal courts, its authority to mandate enforcement of this federal right in state courts remains intact. And with the full force of the Supremacy Clause behind them, the employees urge that the supreme law of the land trumps state sovereign immunity granted under the State Constitution.

Again, we find the answer to the question in Hilton v. South Carolina Public Railways Comm'n, supra. 1 In this six-to-two decision with one justice not participating, the Court examined whether the State Public Railways Commission could be sued in state court for a Federal Employers' Liability Act (FELA) claim, when the Eleventh Amendment has provided the states with protection against FELA suits in federal courts. The Court first observed that the notion of symmetry, that is, state immunity from liability in both state and federal courts, had much to commend it. Nonetheless, the Court refused to bow to symmetrical considerations. It focused, rather, on stare...

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