Redgrave v. Ducey

• Decision Date: 19 August 2021
• Docket Number: No. CV-20-0082-CQ,CV-20-0082-CQ
• Citation: 51 Arizona Cases Digest 40,493 P.3d 878
• Court: Arizona Supreme Court
• Parties: Marcie A. REDGRAVE, individually and on behalf of all others similarly situated, Plaintiff/Appellant, v. Doug DUCEY, Governor ; Thomas J. Betlach, in his official capacity as director of the Arizona Health Care Cost Containment System; Arizona Department of Economic Security; Arizona Division of Developmental Disabilities, Defendants/Appellees.

51 Arizona Cases Digest 40

493 P.3d 878

Marcie A. REDGRAVE, individually and on behalf of all others similarly situated, Plaintiff/Appellant,

v.Doug DUCEY, Governor ; Thomas J. Betlach, in his official capacity as director of the Arizona Health Care Cost Containment System; Arizona Department of Economic Security; Arizona Division of Developmental Disabilities, Defendants/Appellees.

No. CV-20-0082-CQ

Supreme Court of Arizona.

Filed August 19, 2021

Nicholas J. Enoch, Stanley Lubin, Kaitlyn A. Redfield-Ortiz (argued), Lubin & Enoch, P.C., Phoenix, Attorneys for Marcie A. Redgrave

J. Mark Ogden, Littler Mendelson, P.C., Phoenix, Attorneys for Doug Ducey; and Mark Brnovich, Arizona Attorney General, Drew C. Ensign, Deputy Solicitor General, (argued), Robert J. Makar, Assistant Attorney General, Phoenix, Attorneys for Thomas J. Betlach, Arizona Department of Economic Security, and Arizona Division of Developmental Disabilities

David L. Abney, Ahwatukee Legal Office, P.C., Phoenix; Stanley G. Feldman, Miller, Pitt, Feldman & McAnally, P.C., Tucson; and Daniel J. Adelman, Arizona Center for Law in the Public Interest, Phoenix, Attorneys for Amici Curiae Arizona Center for Law in the Public Interest and Arizona Association for Justice/Arizona Trial Lawyers Association

Edmundo P. Robaina, Robaina & Kresin PLLC, Phoenix; and Ty D. Frankel, Bonnett, Fairborn, Friedman & Balint, P.C., Phoenix, Attorneys for Amicus Curiae Kimberly Spitler

CHIEF JUSTICE BRUTINEL authored the opinion of the Court, in which VICE CHIEF JUSTICE TIMMER, and JUSTICES BOLICK, LOPEZ, BEENE, and MONTGOMERY joined.^*

CHIEF JUSTICE BRUTINEL, opinion of the Court:

¶1 The United States Court of Appeals for the Ninth Circuit certified the following question to this Court: Has Arizona consented to damages liability for a state agency's violation of the minimum wage or overtime provisions of the federal Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 206 – 207 ?

¶2 The Arizona Constitution gives the legislature the authority to waive Arizona's sovereign immunity, and the legislature has not unequivocally consented to federal damages liability. Therefore, we hold that Arizona has not consented to such liability under the FLSA.

I. BACKGROUND

¶3 Marcie Redgrave claims the State¹ violated the FLSA by failing to pay minimum wage and overtime compensation to state-employed in-home caretakers like herself, who provide around-the-clock care to beneficiaries of the Arizona Long-Term Care System. In February 2018, Redgrave filed a putative class action complaint to that effect in Maricopa County Superior Court. The State removed the case to federal court, asserted its sovereign immunity, and moved to dismiss. After rejecting Redgrave's contentions that (1) the State waived its sovereign immunity by removing the case to federal court and (2) Arizona has waived its sovereign immunity as a matter of law, the district court dismissed Redgrave's claims. Redgrave appealed.

¶4 Finding no controlling Arizona precedent addressing the State's assertion of sovereign immunity to damages liability under the FLSA, the Ninth Circuit certified the above-stated question to this Court. Redgrave v. Ducey , 953 F.3d 1123, 1127–28 (9th Cir. 2020) (mem. decision).²

¶5 We agreed to answer the question, and we have jurisdiction under article 6, section 5(6) of the Arizona Constitution, A.R.S. § 12-1861, and Arizona Supreme Court Rule 27.

II. DISCUSSION

¶6 The Arizona Constitution provides that "[t]he legislature shall direct by law in what manner and in what courts suits may be brought against the state." Ariz. Const. art. 4, pt. 2, § 18. In so doing, it grants to the legislature "express authority ... to define those instances in which public entities and employees are entitled to immunity." Clouse ex rel. Clouse v. State , 199 Ariz. 196, 203 ¶ 25, 16 P.3d 757, 764 (2001). The issue here is whether the legislature, in exercising this power, has consented to damages liability under the FLSA. It has not.

A. Standard for Sovereign Immunity Waivers

¶7 Before assessing whether the State has consented to be sued, we first must address the more difficult question of what is required to waive sovereign immunity in Arizona.

¶8 "Dual sovereignty is a defining feature of our Nation's constitutional blueprint." Sossamon v. Texas , 563 U.S. 277, 283, 131 S.Ct. 1651, 179 L.Ed.2d 700 (2011). Sovereign immunity bolsters this arrangement by restricting federal jurisdiction over suits against nonconsenting states. Id. at 284, 131 S.Ct. 1651. "A State ... may choose to waive its immunity in federal court at its pleasure." Id. Yet such immunity is not confined to cases filed in federal court. The Supreme Court has recognized sovereign immunity in state courts as well: "the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts." Alden v. Maine , 527 U.S. 706, 712, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). Absent its consent, then, a state generally remains constitutionally immune from liability for federally created causes of action in its own courts as well.³ Alden , 527 U.S. at 754, 119 S.Ct. 2240 ; accord Coleman v. Court of Appeals of Md. , 566 U.S. 30, 35, 132 S.Ct. 1327, 182 L.Ed.2d 296 (2012) ("A foundational premise of the federal system is that States, as sovereigns, are immune from suits for damages, save as they elect to waive that defense.").

¶9 Each of the parties here advances its own theory of what is required to evidence consent to be sued. In the State's view, we should employ the same standard applied by federal courts, upon whom the Supreme Court has imposed a "stringent" requirement that consent be " ‘unequivocally expressed’ in the text of the relevant statute"—in this case, the Actions Against Public Entities and Public Employees Act (the "Act"), A.R.S. §§ 12-820 to 12-826. See Sossamon , 563 U.S. at 283, 131 S.Ct. 1651 (quoting Pennhurst State Sch. & Hosp. v. Halderman , 465 U.S. 89, 99, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) ). This approach demands more than a state's consent to suit in its own courts, or even "in any court of competent jurisdiction." Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd. , 527 U.S. 666, 676, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999). Any waiver must be explicit, resolving all ambiguity in favor of preserving immunity. Sossamon , 563 U.S. at 285, 131 S.Ct. 1651.

¶10 Redgrave favors a less exacting approach.⁴ Echoing the Ninth Circuit's Certification Order, she contends that we "flipped the traditional rule," see Redgrave , 953 F.3d at 1127, by holding that, when construing the Act's immunity provisions, "governmental liability is the rule in Arizona and immunity is the exception," see Doe ex rel. Doe v. State , 200 Ariz. 174, 176 ¶ 4, 24 P.3d 1269, 1271 (2001). We disagree.

¶11 Context gainsays Redgrave's view that the Act's rule favoring government liability extends to claims for federal damages. The Arizona Constitution expressly assigns to the legislature the role of setting the parameters of state sovereign immunity. See Ariz. Const. art. 4, pt. 2, § 18 ; Clouse , 199 Ariz. at 203 ¶ 25, 16 P.3d at 764. Our presumption of liability respects this authority. In fact, it mirrors the Act's statement of purpose and intent, which declares it "the public policy of this state that public entities are liable for acts and omissions of employees in accordance with the statutes and common law of this state" and instructs courts to construe the Act accordingly. 1984 Ariz. Sess. Laws, ch. 285, § 1(A) (2d Reg. Sess.). But that same statement prevents us from applying this presumption beyond claims arising from "the statutes and common law of this state." Cf. Fleming v. State Dep't of Pub. Safety , 237 Ariz. 414, 418 ¶¶ 18–19, 352 P.3d 446, 450 (2015) (crediting legislative statement of purpose and intent for pro-liability presumption); Doe , 200 Ariz. at 175–76 ¶ 4, 24 P.3d at 1270–71 (same); Fidelity Sec. Life Ins. Co. v. State , 191 Ariz. 222, 224–25 ¶ 7, 954 P.2d 580, 582–83 (1998) (same). To hold otherwise would diminish the legislature's constitutional role in administering Arizona's sovereign immunity while inadvertently aggrandizing federal power over state affairs. See Welch v. Tex. Dep't of Highways & Pub. Trans. , 483 U.S. 468, 473–74, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987) ("[A] State does not waive Eleventh Amendment immunity in federal courts merely by waiving sovereign immunity in its own courts."). We decline to reach such a result absent clear consent.

¶12 Our pre-Act abolition of governmental immunity in Stone v. Arizona Highway Commission does not require us to accept Redgrave's reading of the Act. See 93 Ariz. 384, 392, 381 P.2d 107 (1963). In fact, our holding in Stone suggests any presumption favoring governmental liability originally extended only to common law tort claims. See id. at 387, 381 P.2d 107 ("After a thorough re-examination of the rule of governmental immunity from tort liability , we now hold that it must be discarded as a rule of law in Arizona and all prior decisions to the contrary are hereby overruled." (emphasis added)); see also id. at 388 n.1, 381 P.2d 107 ("The whole doctrine of governmental immunity from liability for tort rests upon a rotten foundation." (quoting Annotation, Rule of municipal immunity from liability for acts in performance of governmental functions as applicable in case of personal injury or death as result of a nuisance , 75 A.L.R. 1196 (1931) ) (emphasis added)). And we have eschewed subsequent invitations to read Stone more expansively. See Clouse , 199 Ariz. at 202 ¶ 20, 16 P.3d at 763 ("Although our decisions since Stone follow a somewhat circuitous route, we have never suggested that Stone prohibits all forms of governmental immunity. To the contrary, we consistently have recognized the power of the legislature to retain or confer immunity where appropriate."); cf. Backus v....