Mossman v. Donahey

• Decision Date: 07 April 1976
• Docket Number: No. 75-222,75-222
• Citation: 46 Ohio St.2d 1,346 N.E.2d 305
• Parties: , 22 Wage & Hour Cas. (BNA) 905, 79 Lab.Cas. P 33,445, 75 O.O.2d 1 MOSSMAN, Appellant, v. DONAHEY et al., Appellees.
• Court: Ohio Supreme Court

Page 1

46 Ohio St.2d 1

346 N.E.2d 305, 22 Wage & Hour Cas. (BNA) 905,

79 Lab.Cas. P 33,445, 75 O.O.2d 1

MOSSMAN, Appellant, v. DONAHEY et al., Appellees.

No. 75-222.

Supreme Court of Ohio.

April 7, 1976.

Syllabus by the Court

1. A state cannot, without its consent, be sued for damages in a state court by one of its citizens upon a claim arising under federal law. (Elventh Amendment to the United States Constitution construed.)

2. The 1966 amendments to the Fair Labor Standards Act did not deprive a state of its constitutional immunity from suit by employees of its institutions for the mentally retarded.

In 1940, when he was 15 years old, Nelson Eugene Souder's parents died and he was involuntarily committed to Orient State Institute, an institution owned and operated by the state of Ohio for the care of the mentally retarded. He remained at Orient until his release in 1973. During that period, he worked in a kitchen, preparing food, washing dishes, and cleaning for up to 12 1/2 hours a day with two days off each month. He was paid two dollars a month by the state.

In 1966, Congress passed amendments to the Fair Labor Standards Act (Sections 203, 206, 207, Title 29, U.S.Code), hereinafter 'FLSA,' which provide in Section 203(r) that a state is not to be considered an employer except with respect to certain employees, including those performing activities 'in connection with the operation of * * * an institution primarily engaged in the care of * * * the mentally ill or defective who reside on the premises of such institution * * *.' The FLSA requires certain employers to pay minimum and overtime wages to their employees, provides criminal penalties for failure to pay the required wages and permits recovery of unpaid wages by civil suits.

In 1973, Nelson Souder was a plaintiff in a class action suit brought against the Secretary of Labor in the United States District Court for the District of Columbia. The action sought a declaratory judgment that patient-workers in institutions for the mentally ill and mentally retarded are covered by the minimum and overtime wage standards of the FLSA, and an order compelling the Department of Labor to enforce such standards. On November 14, 1973, the court issued an opinion determining that plaintiffs were covered by the FLSA, and ordered the implementation of enforcement standards by the Department of Labor. The state of Ohio was not a party to that action.

Thereafter, Souder, through a next friend, filed the present suit in the Court of Common Pleas of Franklin County, seeking recovery of unpaid wages and compensatory damages against the state and various state officials and employees. The trial court granted the state's motion to dismiss the complaint based upon the applicability of the doctrine of sovereign immunity, and the Court of Appeals affirmed.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Vorys, Sater, Seymour & Pease, C. William O'Neill and Alan T. Radnor, Columbus, for appellant.

William J. Brown, Atty. Gen., and George Stricker, Jr., Columbus, for appellees.

STERN, Justice.

It is undisputed that the state was Nelson Souder's employer within the meaning of the 1966 amendment to the FLSA. The sole issue raised herein is whether the state may assert sovereign immunity as a defense to claims based upon federally-created rights under the FLSA, in an action brought by an individual in a state court. That issue is one which has been specifically left open by the United States Supreme Court in two recent cases.

In Maryland v. Wirtz (1968), 392 U.S. 183, 88 S.Ct. 2017, 20 L.Ed. 1020, the court held that minimum and overtime wage requirements of the FLSA were valid as exercises of the commerce power, and could constitutionally be applied to state-operated schools and hospitals. The court, however, at page 199, 88 S.Ct. at page 2025, specifically reserved for future cases the question of 'whether the Act violates the States' sovereign immunity from suit guaranteed by the Eleventh Amendment.'

In Employees v. Missouri Public Health Dept. (1973), 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251, an action in federal court under the FLSA brought by employees of state health facilities, Justice Douglas' majority opinion stated that the language of the FLSA did not disclose a congressional purpose to deprive a state of its Eleventh Amendment immunity to suit in a federal court, and, therefore, the action was held to have been properly dismissed. The majority, at page 287, 93 S.Ct. at page 1619, noted that Section 16(b) of the Act authorizes employee suits 'in any court of competent jurisdiction,' and stated that this language 'arguably' permits such suits in state courts, but did not reach that question.

Justice Marshall, joined by Justice Stewart, concurred. The concurrence argued that the common-law doctrine of sovereign immunity 'was modified pro tanto * * * (when) the States relinquished their sovereignty to the Federal Government' (411 U.S. at 288, 93 S.Ct. at 1620), and that the states may not assert sovereign immunity to defeat a valid exercise of power by Congress under the Commerce Clause. The Eleventh Amendment, it was asserted, relates merely to '* * * the susceptibility of the States to suit before federal tribunals' (411 U.S. at 294, 93 S.Ct. at 1622), and would be no defense to a suit in a state tribunal. Justice Brennan, in a dissenting opinion, largely agreed with that argument but would have permitted the suit to be brought in federal court, because the Eleventh Amendment does not by its terms bar suits against a state by a citizen of that state. Further, at page 323, 93 S.Ct. at 1637, the dissent argued that the entire theory of sovereign immunity, 'born of systems of divine right that the Framers (of the Constitution) abhorred,' is incompatible with our constitutional system, in which the people, and not the states, are sovereign.

In a case on all fours with the present case, the Supreme Court of Tennessee adopted the reasoning of Justice Marshall, and held that an employees' suit against a state in that state's court was not barred by the defense of sovereign immunity. Clover Bottom Hospital & School v. Townsend (Tenn.1974), 513 S.W.2d 505. Contra, Weppler v. School Board of Dade County (Fla.App., 1975), 311 So.2d 409.

The language of the Eleventh Amendment is simple and clear enough on its face, but the interpretation of that language and of the purpose underlying its framing has been a very different matter.

The Amendment states:

'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.'

By its terms, the Amendment appears only to be a limitation upon the jurisdiction of federal courts to hear two sorts of cases. But the courts have never treated the Amendment in that fashion. It has been held that the immunity of the state under the Eleventh Amendment is 'a personal privilege which it may waive at pleasure.' (Clark v. Barnard (1883), 108 U.S. 436, 447, 2 S.Ct. 878, 883, 27 L.Ed. 780), although logically a party may not 'waive' a court's lack of judicial power. The Amendment has also been held to bar suits to which its language does not apply, e. g., suits by a foreign power against a state, Monaco v. Mississippi (1934), 292 U.S. 313, 54 S.Ct. 745, 78 L.Ed. 1282; suits by a corporation created by Act of Congress against a state, Smith v. Reeves (1900), 178 U.S. 446, 20 S.Ct. 919, 44 L.Ed. 1140; suits against a state in admiralty, Ex parte State of New York (1921), 256 U.S. 490, 497, 41 SCt. 588, 65 L.Ed. 1057; and suits in which one state seeks relief on behalf of its citizens against another state, New Hampshire v. Louisiana (1883), 108 U.S. 76, 2 S.Ct. 176, 27 L.Ed. 656.

Again, the Amendment has been held to bar a suit prosecuted against a state, without its consent, by one of its own citizens. Hans v. Louisiana (1890), 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842; Duhne v. New Jersey (1920), 251 U.S. 311, 40 S.Ct. 154, 64 L.Ed. 280. All of these decisions grow from the unexpressed intent of the Amendment, rather than from its actual language. As Chief Justice Stone stated in Monaco v. Mississippi, supra, at pages 322-23, 54 S.Ct. at pages 748-749:

'Manifestly, we cannot rest with a mere literal application of the words of section 2 of article 3, or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against nonconsenting states. Behind the words of the constitutional provisions are postulates which limit and control. There is the essential postulate that the controversies, as contemplated, shall be found to be of a justiciable character. There is also 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.' The Federalist, No. 81.'

These postulates find their source in the history both of the Constitution and of the circumstances surrounding the adoption of the Amendment, as the Supreme Court has pointed out on several occasions. Edelman v. Jordon (1974), 415 U.S. 651, 660-63, 94 S.Ct. 1347, 39 L.Ed.2d 662; Monaco v. Mississippi, supra, at pages 323-25, 54 S.Ct. 1745; Hans v. Louisiana, supra, at pages 10-16, 10 S.Ct. 504; New Hampshire v. Louisiana, supra.

Section 2, Article III of the United States Constitution provides that the judicial power shall extend, among other cases, 'to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State * * * and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.' The effect of this grant of judicial power upon the traditional common-law...