I'm not sure I see the conflict between Alden and Howlett v. Rose. If I understand Alden, states retain sovereign immunity in their own courts unless waived because ratification of the constitution did not empower Congress to override it; Congress did not acquire that power until ratification of the Civil War amendments. Alden thus makes explicit what Seminole Tribe left implicit -- the Eleventh Amendment was a response to the consitutional heresy of Chisholm, and restored the constitutional order to the original intent of the framers. (I am no more persuaded of the soundness of that reasoning than was Justice Brennan or Justice Souter, but that does seem to be the current Court's dogma on the Eleventh Amendment).
Howlett held that a school board, a unit of local government and a person within the meaning of section 1983, could not rely on a state created sovereign immunity for school boards when sued in state court. Because the school board was not the state, but was a unit of local government, the retained sovereign immunity of the state was not at issue, and therefore neither was the constitutional power of Congress to provide for the liability of school boards in suits under section 1983. Neither the Eleventh Amendment nor the constitutional understanding pre Chisholm called into question the power of congress to subject units of local government to suit under federal law; therefore, states that hear section 1983 claims are obliged under the Supremacy Clause to adjudicate them under federal law, applying only those defenses authorized by section 1983. Because states cannot create a defense to liability under federal laws generally, it follows that the school board could not assert a so called but misnamed for purposes of constitutional analysis sovereign immunity. Note -- I share Marty's skepticism regarding the assertedly nondiscriminatory character of Maine's waiver of sovereign immunity. I just don't see how that comes into play in Howlett since there is no retained sovereign immunity for units of local government that the state must waive. Michael R. Masinter 3305 College Avenue Nova Southeastern University Fort Lauderdale, Fl. 33314 Shepard Broad Law Center (954) 262-6151 [EMAIL PROTECTED] Chair, ACLU of Florida Legal Panel On Wed, 2 Jul 2003, Marty Lederman wrote: > Well, what he says is that they can be brought "in state courts that are already > open to litigation against the state" (citing Alden). Perhaps all he means is that > they can be brought in state court if the state so consents. If so, that's an > unremarkable assertion. > > Alternatively, perhaps Easterbrook is suggesting that such claims can be brought in > state court if analogous state-law claims are entertained in that court. If this is > what he means, it would raise one of the mysteries of Alden, namely, what survives > of the antidiscrimination rule of cases such as Testa and Howlett v. Rose? The > Court in Alden concedes that a State may not > "manipulat[e] its immunity in a systematic fashion to discriminate against federal > causes of action." 527 U.S. at 758. But it does not explain why that wasn't > exactly what happened in Alden itself. As explained in detail in the SG's brief > excerpted below (disclosure: I worked on the case at DOJ), Maine had, in fact, > discriminated against the federal cause of action. The Court's entire, unresponsive > and unconvincing response to this was: "To the extent Maine has chosen to consent > to certain classes of suits while maintaining its immunity from others, it has done > no more than exercise a privilege of sovereignty concomitant to its constitutional > immunity from suit." Id. After that ipse dixit, what is left of Testa and Howlett? > See Vicki Jackson, 75 Notre Dame L. Rev. 953, 965-66, 1001-04. > > Marty Lederman > > > > Excerpt from SG Brief in Alden: > > Maine law expressly permits monetary claims to be brought against the State in state > court. Indeed, Maine courts entertain such claims against the State specifically in > its capacity as an employer, including wage claims for violations of the State's > minimum-wage law. Me. Rev. Stat. Ann. tit. 26, §§ 664, 670 (West 1998) (minimum > wage); see also id. § 833 (whistle blower); id. § 844 (family medical leave); id. > tit. 5, §§ 4551 et seq. (human rights); id. tit. 39-A, § 101 (workers' > compensation). Especially in these circumstances, the State's assertion of sovereign > immunity as a defense to a claim under the FLSA constitutes impermissible > discrimination against a federal claim. > The State asserts (Br. in Opp. 21-22) that there is no discrimination because > petitioners are seeking one and one-half times their regular rate of pay for > overtime work, and Maine courts do not entertain such state-law claims against the > State. But the State's failure to entertain state-law overtime claims against the > State for one and one-half times the regular rate of pay reflects nothing more than > the State's substantive policy judgment that the State should not be required to pay > its employees a premium overtime rate in the first place. Me. Rev. Stat. Ann. tit. > 26, § 664(3)(D) (West *25 1998) (exempting public employees from overtime > provision). A state court may not decline to enforce the FLSA, however, because it > disagrees with the policy judgment made by Congress, which this Court upheld in > Garcia, regarding the rate of compensation it must pay to its employees. See, e.g., > Testa, 330 U.S. at 390, 392. > Accordingly, as the decisions in Testa and Howlett demonstrate, a finding of > discrimination against a federal claim, in violation of the Supremacy Clause, does > not depend on the existence of a state claim that is identical to the federal claim > in every detail. Rather, discrimination exists when the State entertains suits of > the same general type. Howlett, 496 U.S. at 361, 378, 380 (state court must > entertain Section 1983 action alleging that school's search of car and suspension of > student from school violated the Constitution where state court entertained > state-law tort suits against state entities, including school boards, and against > state officers); Testa, 330 U.S. at 394 (state court must entertain treble-damage > price-control claim where state court would enforce same type of claim under state > law and had enforced double-damage FLSA claim); see also Second Employers' Liability > Cases, 223 U.S. at 57 (action under FELA is sufficiently analogous to state-law > claims for personal injury and wrongful death). > When a state court's basis for refusing to entertain a federal monetary claim is a > sovereign immunity defense, the relevant question--for the specific purpose of > assessing the issue of discrimination--is whether the state court entertains > state-law monetary claims against the State in which the State does not recognize > sovereign immunity as a defense. At the very least, however, when a State entertains > state-law wage claims against the State, but refuses to entertain federal-law *26 > wage claims against the State, it discriminates against the federal wage claim. Such > discrimination "flatly violates the Supremacy Clause." Howlett, 496 U.S. at 380-381. > > > ----- Original Message ----- > From: "Marc Stern" <[EMAIL PROTECTED]> > To: <[EMAIL PROTECTED]> > Sent: Wednesday, July 02, 2003 9:26 AM > Subject: Re: Easterbrook repeats that police departments need not accommod ate > officers who refuse to guard certain places > > > > Judge Easterbrook held that Title VII complainants against state defendants could > > bring their Title VII accommodation cases in state court, but under federal > > law.How does that result square with Alden v. Maine, holding that states were > > immmune from FLSA cases in state court?. > > Marc Stern > > >
