Jacoby v. Arkansas Dep't of Ed.

Richard JACOBY, Freddie Mae Green, Curtis
Ivy, Jean Marrow, Elsie Sanchez, Evan
Sanders, George Thomas, Barbara 
Whittaker, and Shirley Williams v. 
ARKANSAS DEPARTMENT OF EDUCATION, Vocational
and Technical Education Division

97-310                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 19, 1998


1.   Constitutional law -- Eleventh Amendment -- grants states immunity in
     federal court absent abrogation or waiver. -- 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; the immunity of
     the states under the Eleventh Amendment has been expanded to
     exclude all suits by citizens of the same state in federal
     court.

2.   Constitutional law -- sovereign immunity -- how abrogated -- states subject
     to FLSA claims. -- Congress can only void Eleventh Amendment
     immunity by enacting law that meets two requirements: first,
     Congress must unequivocally express its intent to abrogate the
     immunity; secondly, Congress must enact the abrogating law
     pursuant to a valid exercise of authority granted it under the
     United States Constitution; with respect to this case,
     Congress clearly intended to subject states, as employers, to
     Fair Labor Standards Act (FLSA) claims in both federal courts
     and state courts.

3.   Constitutional law -- sovereign immunity -- state employers immune from
     FLSA claims in federal court. -- The United States Supreme Court
     has effectively made state employers immune from FLSA claims
     in federal court.

4.   Constitutional law -- Eleventh Amendment -- does not grant states immunity
     in their own courts. -- The Eleventh Amendment does not grant
     states immunity in their own courts; by its own terms, the
     Eleventh Amendment is limited to the judicial power of the
     United States.

5.   Constitutional law -- sovereign immunity -- Arkansas Constitution protects
     State absent waiver or consent. -- Article 5,  20, of the Arkansas
     Constitution, which provides that "[t]he State of Arkansas
     shall never be made a defendant in any of her courts," fully
     protects the State absent a waiver or consent by the State to
     be sued.

6.   Constitutional law -- Supremacy Clause -- FLSA became supreme law of land.
     -- Pursuant to the Supremacy Clause of the United States
     Constitution, when Congress enacted the FLSA, it became the
     supreme law of the land; federal law is treated as much the
     law in the States as laws passed by the state legislature; the
     FLSA states that actions may be maintained against any
     employer, including a public agency, in any federal or state
     court of competent jurisdiction.

7.   Constitutional law -- sovereign immunity -- could not impede FLSA state
     liability in state courts. -- Although the United States Supreme
     Court had struck down state liability for FLSA claims in
     federal courts, the supreme court did not deem the fact to be
     determinative of state liability in state courts; the FLSA
     remained valid law throughout the land, protecting employees
     and empowering them to enforce claims for unpaid wages, and
     state sovereign immunity could not impede it.

8.   Constitutional law -- Supremacy Clause -- uniformity consideration --
     implication for FLSA enforcement. -- There is a uniformity
     consideration inherent in the principle of supreme law of the
     land; the supreme court noted that if the matter is left to
     the individual states to determine whether state sovereign
     immunity offers state employers sufficient protection, the
     result might be a patchwork quilt of FLSA enforcement.

9.   Constitutional law -- weight of authority favored appellant employees --
     FLSA enforced in state courts through Supremacy Clause -- reversed and
     remanded. -- Declaring that the weight of authority favored
     appellant employees and that the FLSA remained to be was
     enforced against state employers only in state courts and was
     viable only by virtue of the Supremacy Clause, the supreme
     court reversed and remanded the matter.


     Appeal from Pulaski Circuit Court; Marion Humphrey, Judge;
reversed and remanded.
     Lavey & Burnett, by: John L. Burnett, for appellants.
     Winston Bryant, Att'y Gen., by:  Kay J. Jackson DeMailly,
Asst. Att'y Gen., for appellee.

     Robert L. 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 (1987); Fitzpatrick
v. Bitzer, 427 U.S. 445 (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 (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 (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.  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 [3].  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 (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 (1991), the Court made the point emphatically that the Eleventh
Amendment does not apply to state courts.  Hilton, 502 U.S. at 204-
05, citing Will v. Michigan Dept. of State Police, 491 U.S. 58
(1989); Maine v. Thiboutot, 448 U.S. 1 (1980); Nevada v. Hall, 440 U.S. 410 (1979).  Indeed, the Court in Hilton said that it had
noted this inapplicability "on many occasions[.]"  Hilton, 502 U.S. 
at 205.  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 (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.  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 decisis and on the fact that the Court for 28
years had interpreted the FELA to include claims against state-
owned railroads.  In its decision in Welch v. Texas Dept. of
Highways & Pub. Trans., supra, the Court had held that the Eleventh
Amendment did not void state immunity in federal court for Jones
Act claims.  Because of the Welch decision and the fact that the
Jones Act incorporated the FELA remedial scheme, the plaintiffs in
Hilton dismissed the federal action and filed in state court.
     The Court, therefore, adhered to its precedent that states
were liable for FELA claims and noted that the Welch decision did
not address
     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[.]
Hilton, 502 U.S.  at 203.  Because the FELA did impose liability on
the states, the Court concluded that the Supremacy Clause made that
law fully enforceable against the states in state courts.
     The Court in Hilton did not specifically discuss the conflict
between the supremacy Clause and state sovereign immunity, but it
cited Howlett v. Rose, 496 U.S. 356 (1990), in support of its
conclusion.  In Howlett, a local school board was sued in state
court by a former student who alleged that his federal rights were
violated under 42 U.S.C.  1983.  The state court dismissed the
lawsuit on grounds that the school board, as an arm of the state,
had not waived its sovereign immunity in  1983 cases.  The Court,
in a unanimous decision, noted that the state dismissal raised
concern that the state court may be evading federal law and
discriminating against federal causes of action.  It emphasized
that  1983 was the supreme law of the land which state courts were
obligated to enforce.  The Court then reasoned:
     But as to persons that Congress subjected to liability,
     individual States may not exempt such persons from
     federal liability by relying on their own common-law
     heritage.  If we were to uphold the immunity claim in
     this case, every State would have the same opportunity to
     extend the mantle of sovereign immunity to "persons" who
     would otherwise be subject to  1983 liability.  States
     would then be free to nullify for their own people the
     legislative decisions that Congress has made on behalf of
     all the People.
Howlett, 496 U.S.  at 383.  As a result, the Court held that  1983,
as the supreme law of the land, overcame any protection invoked by
the school board for state sovereign immunity.
     There is precedent in state courts for our holding here today. 
In Clover Bottom Hospital and School v. Townsend, 513 S.W.2d 505
(Tenn. 1975), the Tennessee Supreme Court addressed an issue
comparable to what confronts us in the instant case.  In Townsend,
several people sued to recover unpaid wages against the state
hospital pursuant to the FLSA in federal court.  The suit was
dismissed for lack of federal-court jurisdiction under the FLSA as
it was then written.  The plaintiffs sued next to enforce their
FLSA claims in state court, and the state hospital moved to dismiss
the action due to state sovereign immunity granted under the
Tennessee Constitution.  The trial court denied the motion, and the
Tennessee Supreme Court affirmed.  In doing so, the court adopted
the reasoning of Justice Marshall in Employees v. Missouri Public
Health Dept., 411 U.S. 279 (1973), where he concurred in that
decision but underscored the principle that by empowering Congress
to regulate commerce, the states necessarily surrendered "any
portion of their sovereignty that would stand in the way of such
regulation."  Townsend, 513 S.W.2d  at 507, quoting Employees v.
Missouri Public Health Dept., 411 U.S.  at 288-89, (Marshall, J.,
concurring).  See also Parden v. Terminal R. Co., 377 U.S. 184, 192
(1964), overruled in part by Welch v. Texas Department of Highways
& Pub. Trans., supra.
     We agree with the Townsend conclusion but, again, underscore
the point that in our judgment Hilton v. South Carolina Public
Railways Comm'n, supra, and Howlett v. Rose, supra, decide this
issue.  Here, the FLSA expressly provides that state courts have
jurisdiction over these claims.  29 U.S.C.  216(b).  Furthermore,
state employees like the employees in the instant case are clearly
entitled to file FLSA claims against state agencies as employers. 
29 U.S.C.  216(b); 29 U.S.C.  203(d); 29 U.S.C.  203(x).  See
also Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).  As already noted, we do not deem the fact that
Seminole Tribe v. Florida, supra, has struck down state liability
for FLSA claims in federal courts as determinative of state
liability in its own courts.  The FLSA remains valid law protecting
employees and empowering them to enforce claims for unpaid wages. 
This law remains the law throughout the land, and state sovereign
immunity cannot impede it.
     There is, of course, a uniformity consideration inherent in
the principle of supreme law of the land.  If the matter is left to
the individual states to determine whether state sovereign immunity
offers state employers sufficient protection, the result may well
be a patchwork quilt of FLSA enforcement with some state courts
permitting FLSA claims against state employers and other state
courts declining to do so.
     We are mindful of the fact that in the past several state
appellate courts have not been persuaded that the Supremacy Clause
preempts the immunity of a state sovereign against suit in its own
courts.  See, e.g., Morris v. Massachusetts Maritime Academy, 565 N.E.2d 422 (Mass. 1991); Widgeon v. Eastern Shore Hosp. Ctr., 479 A.2d 921 (Md. 1984); Lyons v. Texas A&M Univ., 545 S.W.2d 56 (Tex.
Civ. App. 14 Dist. 1977); Mossman v. Donahey, 346 N.E.2d 305 (Ohio
1976); Weppler v. School Bd. of Dade County, 311 So. 2d 409 (Fla.
App. 3 Dist. 1975); Board of Comm'rs v. Splendour Shipping & Ent.
Co., 255 So. 2d 869 (La. App. 4 Dist. 1972); Gross v. Washington
State Ferries, 367 P.2d 600 (Wash. 1961); Maloney v. New York, 144 N.E.2d 364 (N.Y. 1957).
     This point of view is perhaps best typified by the
Massachusetts Supreme Court in Morris v. Massachusetts Maritime
Academy, supra.  In Morris, a cadet (Morris) was killed in a fire
on a state training vessel owned by the state, and Morris's estate
sued the state Maritime Academy in state court on an admiralty
claim for violation of the Jones Act.  Jurisdiction for such
actions against the state in federal court had previously been held
to be foreclosed by the Eleventh Amendment.  See Welch v. Texas
Dept. of Highways and Pub. Trans., supra.  The Maritime Academy
moved to dismiss on grounds that the state was immune from suit by
virtue of its sovereign immunity.  The trial court denied the
motion, and the Massachusetts Supreme Court affirmed because the
Maritime Academy had consented to the suit.
     In its decision, however, the Massachusetts Supreme Court
observed that in a line of cases from Hans v. Louisiana, supra,
forward there was an indication that the U.S. Constitution was
confirmed with the implied assumption that state sovereign immunity
would continue to exist under the Eleventh Amendment in state and
federal courts.  To do otherwise, the court reasoned, would create
an anomalous situation where the Eleventh Amendment provided
protection in one jurisdiction but not in the other, thus demoting
the Eleventh Amendment "into nothing more than a choice of forum
clause."  Morris, 565 N.E.2d  at 426.  The court further voiced
concern over a state's being hauled into its own courts as a party
by the laws of another sovereign.  Id.  The Court, accordingly,
held that the Maritime Academy was protected against suit in state
court, absent consent.
     There is one point which we find persuasive when considering
the Morris decision.  The decision was premised on the fact that
the U.S. Supreme Court had never addressed the precise issue of
state immunity in state courts for a federal claim when federal
jurisdiction was no longer available.  But following the Morris
decision, the Court did appear to reach the issue in Hilton v.
South Carolina Public Railways Comm'n, supra, as previously
discussed, with its citation to Howlett v. Rose, supra.  Without
consideration of the Hilton and Howlett decisions, we consider the
Morris decision as well as the other earlier state court cases to
be of little utility in deciding this issue.
     We are also aware that some ambiguous language in the Seminole
Tribe opinion concerning "unconsenting states" has been seized upon
as support for the proposition that state consent is a prerequisite
to state liability in its own courts for violation of a federal
right.  Carlos Manual Vazquez, What Is Eleventh Amendment Immunity?
106 Yale L.J. 1683, 1717 (1997), citing Seminole Tribe, 517 U.S.  at
72.  There is, too, one-sentence dictum in Hess v. Port Authority
Trans-Hudson Corp., 513 U.S. 30 (1994), that the Eleventh Amendment
shields states from suit in federal court "leaving parties with
claims against a State to present them, if the State permits, in
the State's own tribunals."  Hess, 513 U.S.  at 39 (emphasis added). 
This line of reasoning in favor of state sovereign immunity has its
genesis in Hans v. Louisiana, supra, and the Court's allusion in
that 1890 opinion to the principle that a sovereign cannot be sued
in its own courts without its consent or permission.  Hans, 134 U.S.  at 17.  We view such passing references, and even the language
in Hans, as inconsequential when confronted with the full analysis
of Hilton v. South Carolina Public Railways Comm'n, supra,
bolstered by Howlett v. Rose, supra, where the issue of the
Supremacy Clause was met head-on.
     In sum, we have no doubt that the weight of authority favors
the employees in this matter.  The FLSA now remains to be enforced
against state employers only in state courts and is viable only by
virtue of the Supremacy Clause.  Despite our conclusion, we do not
view our decision today as supporting the concept that Congress has
unbridled authority under the Commerce Clause to require state
courts to enforce federal rights against a state government.  But
with the history of the FLSA and with the Court's clear message
that the Eleventh Amendment is not pertinent to state immunity in
state courts, we can only conclude that the FLSA remains alive and
well and that state-court enforcement against its own sovereign has
not been foreclosed.
     The decision of the circuit court is reversed and this cause
is remanded for further proceedings.
     Reversed and remanded.