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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Glover v. State, Dept of Transportation, Alaska Marine Highway System (01/18/2008) sp-6222
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| JESSE GLOVER, | ) |
| ) Supreme Court No. S- 12220/S-12329 | |
| Appellant/ | ) |
| Cross-Appellee, | ) |
| ) Superior Court No. | |
| v. | ) 1JU-04-00535 CI |
| ) | |
| STATE OF ALASKA, | ) |
| DEPARTMENT OF | ) |
| TRANSPORTATION, ALASKA | ) |
| MARINE HIGHWAY SYSTEM, | ) O P I N I O N |
| ) | |
| Appellee/ | ) |
| Cross-Appellant. | ) No. 6222 - January 18, 2008 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Patricia A. Collins, Judge.
Appearances: James P. Jacobsen, Beard Stacey
Trueb & Jacobsen, LLP, Anchorage, for
Appellant/Cross-Appellee. Susan D. Cox,
Assistant Attorney General, and David W.
M rquez, Attorney General, Juneau, for
Appellee/Cross- Appellant.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
I. A state-employed seaman injured on the job presents a
declaratory challenge to AS 09.50.250(5), a recently enacted
provision rescinding the states waiver of sovereign immunity from
suits under the federal Jones Act and referring state employees
exclusively to the state workers compensation system. The
employee argues that the statute violates the Alaska
Constitutions waiver of sovereign immunity, is preempted by
federal law, and violates his due process and equal protection
rights. The superior court upheld the amended statute. We
affirm because (1) the Alaska Constitutions waiver of sovereign
immunity is not absolute, (2) the federal governments
jurisprudence defers to state assertions of sovereign immunity,
and (3) the statute survives due process and equal protection
challenges.
II. FACTS AND PROCEEDINGS
A. Facts
The facts relevant to this declaratory challenge are
undisputed. In 2003 the Alaska Legislature passed an amendment
to AS 09.50.250 to revoke the states waiver of sovereign immunity
for suits by state-employed seamen.1 The effect of this
amendment was to require injured seamen previously entitled to
sue the state under the federal Jones Act2 to seek compensation
for injury through the state workers compensation system3
instead. The amendment added a fifth type of exception to the
states general waiver of sovereign immunity. In relevant part AS
09.50.250 states:
A person or corporation having a contract,
quasi-contract, or tort claim against the
state may bring an action against the state
in a state court that has jurisdiction over
the claim . . . . However, an action may not
be brought if the claim
. . . .
(5) arises out of injury, illness, or
death of a seaman that occurs or manifests
itself during or in the course of, or arises
out of, employment with the state; AS 23.30
provides the exclusive remedy for such a
claim and no action may be brought against
the state, its vessels, or its employees
under the Jones Act (46 U.S.C. 688), in
admiralty or under the general maritime law.
The bill was introduced into both the house and the
senate at the request of then-governor Frank Murkowski. In a
letter that accompanied the initial bill, the governor explained
that the bill would provide a uniform equitable remedy for work
injuries of all state employees under a single compensable
system. AMHS crew and a small number of other ship based
personnel are the only state employees presently authorized to
file a direct civil (negligence) action against their employer
for on-the-job injury or illness.
On February 6, 2004, after the effective date of the
statute, Jesse Glover was working for the Alaska Marine Highway
System (AMHS) as a crew member on the M/V Tustamena. The vessel
was afloat on navigable waters off the coast of Alaska. As the
ship approached Cordova, the car deck hatch was opened using a
substitute motor. Glover was on the forecastle deck as the ship
was approaching the dock and fell through the hatch. Glover
suffered injuries in the fall that required surgery on his feet.
Glover claims (and the state denies) that his injuries
including head, spine, and foot injuries were a direct and
proximate result of the carelessness and negligence of defendant
and the unseaworthiness of the vessel. Glover stated in his
October 2004 declaration that he was undergoing daily
rehabilitation and anticipated needing additional surgery in the
future.
B. Proceedings
Glovers employer, pursuant to AS 09.50.250(5), handled
Glovers injury under the workers compensation system. Glover
brought this case in the superior court, presenting a declaratory
challenge to AS 09.50.250(5)s revocation of the states sovereign
immunity waiver with respect to state-employed seamen. Glover
challenges AS 09.50.250(5) on several grounds. First, Glover
states that the statute violates article II, section 21 of the
Alaska Constitution, which Glover contends is an unequivocal and
self-executing complete waiver of state sovereign immunity.
Second, Glover argues that the statute impermissibly violates the
United States Constitution because it attempts to displace
supreme federal law with a state remedy and because it
discriminates against a federal cause of action. Third, Glover
argues that the statute violates his rights under the Alaska
Constitution, including his right to a jury trial, his due
process right to access the courts, and his right to equal
protection.
In December 2005 Superior Court Judge Patricia A.
Collins issued a comprehensive order denying Glovers motion for
declaratory judgment and granting the states motion for
declaratory and summary judgment. In January 2006 Judge Collins
entered an order for final judgment. Glover appeals those
determinations.
The state moved for partial attorneys fees pursuant to
Alaska Civil Rule 82(b)(2). Glover argued that he was a public
interest litigant and therefore not subject to an attorneys fee
award under Rule 82. Judge Collins found that Glover was not a
public interest litigant because his action was clearly motivated
primarily by a private economic interest in damages even though
other public policy questions . . . are implicated. Judge
Collins nonetheless found that other equitable factors justified
a downward departure in the fee award and awarded the state only
$1000 in attorneys fees. The state appeals the attorneys fee
award. The two appeals have been consolidated.
III. STANDARD OF REVIEW
Our review of the constitutional and statutory
interpretation issues raised in this case is de novo.4
We review the superior courts award of attorneys fees
under an abuse of discretion standard, and will disturb the award
only if it is manifestly unreasonable.5
IV. DISCUSSION
A. Alaska Statute 09.50.250(5) Does Not Violate Article
II, Section 21 of the Alaska Constitution.
Article II, section 21 of the Alaska Constitution
states: The legislature shall establish procedures for suits
against the State. The question before us is whether this
section of the constitution operates as an absolute waiver of
sovereign immunity in which case the legislature has no
statutory authority to reclaim immunity for specific types of
claims or, in the alternative, if the provision only waives
absolute immunity in which case the legislature may specify the
circumstances under which the states less-than-absolute sovereign
immunity will apply. Glover advocates the former approach, the
state the latter. Glovers first basis for challenging the
constitutionality of AS 09.50.250(5) is that the constitutional
provision is an absolute waiver of sovereign immunity.6
Glovers interpretation of the constitution is a major
departure from the way the provision has been addressed in the
past by both the legislature and this court. In 1962 the
legislature first enacted AS 09.50.250, which both provided the
statutory scheme for the implementation of article II, section 21
and included three exceptions to the states general waiver of its
sovereign immunity.7 These exceptions and their later amendments
have been enforced repeatedly by the Alaska courts.8
Additionally, we addressed the specific issue of the states
immunity from Jones Act suits by employee seamen in State,
Department of Public Safety v. Brown9 and indicated that the
legislature could create a statutory exception to the waiver of
sovereign immunity for seamen, but that without such an exception
the states general waiver of immunity allowed suit.10
Glover argues that in spite of this long history of
state sovereign immunity, this case presents an issue of first
impression for the court. Glover suggests that a careful
investigation of the constitutional history of article II,
section 21 leads to the conclusion that it was intended to be an
absolute waiver of sovereign immunity. Glover approaches the
constitutional history from three different angles: He argues:
(1) that the debates from the Constitutional Convention show that
the provision absolutely waived sovereign immunity, (2) that the
self-executing provision of the constitution requires his
interpretation, and (3) that the history surrounding the final
language of the constitutional provision warrants his
interpretation. He also argues that the legislative history of
AS 09.50.250 supports his position. The state argues that
interpretation of similar constitutional provisions in other
states supports its interpretation of the constitution and argues
that even if Glover were correct in his most narrow reading of
the constitutional provision, AS 09.50.250(5) still passes
constitutional muster because it provides a procedure for Glover
to sue the state for his injuries. We address each of Glovers
contentions in turn.
1. The members of the constitutional convention did
not intend to waive the states sovereign immunity
absolutely or without exception.
The clause of the Alaska Constitution waiving sovereign
immunity11 was presented to the constitutional convention in draft
form by the Legislative Branch Committee (legislative committee)
as part of the proposed article on the legislative branch.12 On
December 14, 1955, the legislative committee presented its first
proposal of the legislative branch article. The provision
regarding sovereign immunity stated:
The legislature shall direct by law in what
manner and in what court suits may be brought
against the state or agencies thereof.[13]
This proposal was accompanied by the following commentary:
Congress has by law permitted suits by
aggrieved or injured citizens against the
United States, and most states permit under
various restrictions suits against
municipalities and other local governments.
It is no longer regarded as justice for the
states to preserve absolute immunity against
legal action for injuries its agents may
commit.[14]
The state argues that this language is evidence that the
committee intended to waive only absolute immunity, allowing
restrictions on the suits that may be brought against the
government.
According to the available records, the provision was
debated specifically on the floor of the convention (rather than
in committee) on only two occasions during the Constitutional
Convention.15 The first time was on January 10, 1956.16 At that
time Judiciary Branch Committee chairman George McLaughlin moved
to amend the proposal on sovereign immunity in order to make sure
it would not conflict with the article on the judiciary.17
McLaughlins proposal borrowed language from Oregons waiver of
sovereign immunity to replace the proposed language which was, at
that time, nearly identical to Arizonas waiver.18 McLaughlin felt
that Oregons language was more appropriate for Alaska because of
the resulting impact it had on the legislatures ability to create
courts,19 a topic not at issue here.
Steve McCutcheon, chairman of the legislative
committee, spoke to reassure the convention regarding how this
article interacted with the court system. McCutcheon stated it
would only involve the legislature designating the particular
level of court in which suits against the state would be brought,
rather than requiring or allowing the creation of new courts, as
McLaughlin feared.20 In this context, McLaughlin asked if it was
the intent of the committee to authorize suits against the state,
and McCutcheon said yes.21 McCutcheon elaborated:
I feel that because the Committee intended
one thing, I think that this group
understands what the Committee intended, that
our Committee has no objection if this
particular amendment is the thing that makes
it perfectly clear what was intended by our
group. In other words, the Legislative
Committee felt that the state may be sued,
period; that the legislature shall indicate
which level of court shall hear that suit
against the state.[22]
Glover argues that this language from McCutcheon
indicates a clear intent that the waiver be absolute. The
context of the debate, however, reveals that McCutcheon was
rejecting the suggestion that the provision allowed for the
creation of new courts or in other ways interfered with the
workings of the judiciary. Thus, McCutcheons description of what
the legislative committee intended was not within the framework
of a debate between absolute immunity or partial immunity.
Later in the same debate, delegate George Sundborg23
asked McLaughlin whether the amendment would allow suits by
taxpayers who have no standing other than as taxpayers.24
McLaughlin said that it would not allow those suits.25 The matter
was adjourned for the day for the purpose of allowing the members
of the judiciary committee to study the issue.26
On January 11 the debate reopened for the second and
last day of actual debate on the sovereign immunity provision.
McLaughlin proposed two changes to the legislative committees
proposed language in order, again, to avoid conflicting with the
judiciary article.27 Delegate Ralph Rivers asked McLaughlin:
[Y]ou have said the legislature shall direct the manner in which
suits may be brought against the state? Doesnt the legislature
also decide what liabilities the state will assume or what
actions, when the state will be sued as well as the manner?28
McLaughlin responded:
I leave that up it was my understanding, Mr.
Rivers, from the Committee that they wanted
to direct that the sovereign state could be
sued and that the legislature couldnt prevent
it. It is my understanding that they can
place a limitation on the liability. I am
not changing, Im sure, the meaning, but I am
removing an apparent or apparent at least to
some, conflict with the judiciary article.[29]
In its briefing the state argues that the line It is my
understanding that they can place a limitation on the liability
reflects a less than absolute waiver of immunity. Glover argued
in the superior court that this line was a slip of the tongue and
placed a [sic] after the word can in his briefing before the
court. In his reply brief before this court Glover advances a
new interpretation, suggesting that the they referred to the
legislative committee drafting the section, not to the
legislature of the future.
Glovers discounting of McLaughlins statement is
supported by subsequent comments of one of the delegates:
Rivers: I was thinking that the way it is
now written it leaves the state open to be
sued at all times and I didnt know the body
had arrived at the idea of letting the state
be sued at all times.
McLaughlin: That was the intent as I
understand it, of the Committee, who
originally drafted this article.[30]
McLaughlins proposed amendments, the subject of the debates, were
not adopted, and the first enrolled version of the provision was
functionally identical to the legislative committees proposal.31
The sum total of the constitutional convention
discussion thus paints a muddled picture. As we have noted in
the past, individual comments from delegates do not necessarily
reflect constitutional intent.32 We agree with Glover that some
of the delegate comments support a reading of absolute waiver,
particularly McLaughlins characterization of what he (a non-
committee member) believed the legislative committee intended.
That characterization was not corrected by any committee members
on the record. However, a reading of the full debate on this
provision leaves us unconvinced that even the most absolutist
characterizations of the provision ever represented even the
speakers view on state immunity. No comments express a
justification for allowing all types of suit against the state at
all times. Moreover, we give more credence to other elements of
the constitutional record and less to the debate remarks.
The most carefully crafted explanation of article II,
section 21 was the one that accompanied the official committee
report, permitting under various restrictions suits against
government.33 That explanation supports the states position that
the constitution would waive absolute sovereign immunity and
replace it with restricted sovereign immunity, as several other
states had done.
We accept the states view of the meaning of the
provision. Glovers position is based on off-the-cuff remarks
from two convention delegates spoken within the context of a
debate on the role of the judiciary rather than a debate on the
matters to which sovereign immunity would apply. Most
importantly, for our analysis, no direct debate occurred on the
subject of whether or not the legislature ought to be able to
restrict the circumstances of the waiver.34 Under the dog that
didnt bark35 canon of statutory construction, the absence of
greater discussion is a meaningful indication that the convention
was not charting a radical course in the arena of state
sovereignty.36 We therefore conclude that the original language
proposed by the committee and the subsequent plenary debates do
not suggest that the delegates intended to create an absolute
waiver of sovereign immunity.
2. The self-executing provision of the constitution
does not require the interpretation that sovereign
immunity was absolutely waived.
Glover argues that article XII, section 9 of the Alaska
Constitution The provisions of this constitution shall be
construed to be self-executing whenever possible requires that
article II, section 21 be interpreted as an absolute waiver of
sovereign immunity. We disagree. Because article II, section 21
contains a directive for legislative action, it is incapable of
being self-executing. Moreover, Glover cites no case law for his
proposition, and he fails to show that we have ever utilized
article XII, section 9 to interpret the meaning of other
constitutional provisions.
3. The differences between the final and preliminary
language of the sovereign immunity waiver do not
mask a substantive change.
Following January 11, 1956, the date of the last floor
debate on the waiver provision, the convention voted to adopt the
article and then sent it to the Committee on Style and Drafting.37
On January 25 that committee presented a redraft of the
legislative article to the convention. The first enrolled
version (pre-style and drafting committee) read:
The legislature shall direct by law in what
manner suits may be brought against the
state.[38]
The style and drafting committees proposal and the final language
of the provision read:
The legislature shall establish procedures
for suits against the state.[39]
Glover argues that the changes made in the style and
drafting committee provide further support for his interpretation
of the section by its omission of the words by law and use of the
words shall and procedures. The state argues that changes made
in the style and drafting committee were by definition non-
substantive and thus should not play any role in the courts
analysis. Legislative history shows that no substantive
importance should be attached to the changes made by the style
and drafting committee in this case.
As a general rule, changes in meaning should not be
derived from the edits of the style and drafting committee.40
Delegate Edward Davis, a member of the committee, spoke to the
plenary session to inform the convention that the committee
attempted to preserve the substantive meaning of the provisions
during its editing process, and that the delegates should assume
that the style and drafting committee did so unless specifically
noted.41 Kimbrough Owen, an adviser to the committee, spoke to
the full session about the work of the committee.42 Owen
explained that the committee had attempted to take the
expressions that are commonly used throughout the constitution
and see that they are used uniformly so that the intent will not
be misunderstood.43 When the committee presented its revised
version of the legislative branch article, committee chairman
Sundborg stated, I think, definitely, we have made no change in
substance.44
Against this backdrop, we address each change upon
which Glover relies.
i. Deletion of by law
The phrase by law was included in the first draft of
the sovereign immunity waiver but not the final. Glover
references the donnybrook that occurred at the convention over
the use of this phrase in the constitution. However, the
convention debate centered around the power of the initiative and
is inapposite to the question at hand. Delegates were concerned
about whether the power of the initiative would be restricted to
instances where the constitution said by law rather than by the
legislature.45 In the end the convention adopted a constitutional
provision instructing the interpreters of the constitution not
to draw any conclusions from the distinction between by law and
by the legislature.46
Glover asserts that by law connoted law-making
authority which the convention decided not to apply to the
sovereign immunity waiver because it was unnecessary. However,
Glover points to nothing in the debate on by law versus by the
legislature discussing the import of removing the phrase from the
provision altogether. We therefore decline to draw any meaning
from that deletion.
ii. Insertion of procedures for suits
The language changed between drafts from in what
manner and in what courts suits may be brought to procedures for
suits. Glover argues this change is significant because the term
procedures should be read consistently throughout the
constitution to have a non-substantive meaning. If procedures
has only a non-substantive meaning, Glover argues, then the
legislature does not have the power to decide on various
exceptions to the sovereign immunity waiver. For support, Glover
cites to Owens speech on the attempt to consistently apply words.
The state emphasizes that the change from in what manner to
procedures was the result of superficial edits by the style and
drafting committee, which repeatedly declared it had made no
changes in meaning. As a result, the state analyzes the initial
language of in what manner and notes that other states have
concluded that the phrase in what manner allows the legislature
to determine in what circumstances the state may be sued.47
The state also argues that procedure and manner can be
given the same substantive meaning. Blacks Law Dictionary
defines procedure as 1. A specific method or course of action.
2. The judicial rule or manner for carrying on a civil lawsuit or
criminal prosecution.48 And certainly, as the state points out,
the Alaska Code of Civil Procedure is enacted by the legislature
and establishes many substantive rights regarding when suits may
be brought by establishing statutes of limitations, creating
causes of action, and creating immunities and limitations on
liabilities. Moreover, the state argues, the drafters of the
constitution generally assigned the judicial branch the primary
authority for making procedural rules relating to civil
litigation while reserving to the legislature the power to define
substantive rights.
Glovers argument that the style and drafting committee
impliedly made a substantive change to the provision on state
sovereign immunity ignores the fact that the chairman of the
style and drafting committee explicitly denied that the committee
had made any substantive changes.49 We therefore decline to draw
any meaning in the change from in what manner to the procedures.
iii. Use of shall
Glover also argues that the word shall denotes
mandatory. His argument points out the numerous times thatshall
refers to provisions which are not optional. This argument, like
the argument on the self-executing provision of the constitution,
dodges the real question. The convention clearly intended to
force the legislature to establish procedures for waiving the
states sovereign immunity. The question before this court is
whether the drafters intended that waiver to be an absolute
waiver or in the alternative intended to abolish only absolute
immunity. The use of the word shall does not bolster Glovers
interpretation.
In sum, we conclude that the changes made by the style
and drafting committee were not intended to create an absolute
waiver of sovereign immunity.
4. The legislative history of AS 09.50.250 supports
less than absolute waiver.
Glover next argues that the legislative history of the
act allowing tort claims against the state, now codified at AS
09.50.250, supports his interpretation of the sovereign immunity
waiver. As Glover notes, in 1957 the Alaska Territorial
Legislature passed an act authorizing some civil actions against
the territory and prohibiting others.50 In 1961 the Alaska
legislature created a revised civil code that included procedures
for suing the state.51
Glover notes that the 1962 legislature eventually
enacted AS 09.50.250 with wording very similar to the 1957 act,
except that it did not directly assert the waiver of sovereign
immunity but instead implied that it already existed.52 Glover
implies that the lack of words of waiver indicate that the waiver
already existed elsewhere the constitution and did not
originate with the statute. However, the same statute included
several exceptions to the states waiver of sovereign immunity.
Those accompanying statutory provisions limiting the waiver
provide even stronger indicia that the type of waiver in the
constitution is not absolute. Again, Glover assumes that the
only two options are to ignore the constitutional provision or to
assume that it operates as an absolute waiver of immunity. The
third alternative, that the constitutional provision mandated a
waiver of absolute immunity but not a complete waiver of all
immunity, is most consistent with the subsequent statutes.
5. Other states interpret similar constitutional
provisions as allowing the legislature to limit
suits against the state.
The state notes that other states with similar
constitutional provisions have construed their constitution to
allow the legislature to decide sovereign immunity in specific
instances.53 Most persuasively, Arizona, from whose constitution
Alaska derived its waiver provision, has since interpreted its
provision to confer upon its legislature the power to define
those instances in which public entities and employees are
entitled to immunity.54 This interpretation, stemming as it does
from a 2001 case, was of course not available to the delegates
during the convention and thus cannot be considered dispositive
of their intent. However, the delegates expressly acknowledged
that the states with sovereign immunity provisions allowed suit
against the state under various restrictions.55 Glover argues
that the interpretations of other states constitutional
provisions, including Arizonas, rely on interpretations of words
which were excised from the final wording of the Alaska
provision. We agree that the interpretations of other states are
not dispositive. Nonetheless, they represent persuasive
authority that the constitution did not waive all sovereign
immunity.
6. Alaska Statute 09.50.250(5) does establish
procedures within the meaning of article II, 21
of the Alaska Constitution.
The superior court noted that the statute Glover
challenges does, in fact, provide a procedure for suits against
the state. Rather than simply asserting sovereign immunity from
suits by state-employed seamen, AS 09.50.250(5) provides that the
seamen may bring claims within the workers compensation system.
In State v. Zia, Inc.56 we upheld the statutory substitution of an
administrative process in lieu of civil litigation against the
state, and limited the claimant to the available administrative
remedies.57 The Zia rationale is equally applicable to the
instant case. Even if the states constitutional waiver of
sovereign immunity was absolute, as Glover claims, the state
could still direct that workers compensation is the procedure by
which such suit must proceed.
In sum, we conclude that AS 09.50.250(5) does not
violate article II, section 21 of the Alaska Constitution.
B. The Jones Act Does Not Supercede AS 09.50.250(5).
Glover next argues that federalism mandates that the
Jones Act supercede AS 09.50.250(5). For the reasons explained
below, we disagree.
The interaction between the Jones Act and AS
09.50.250(5) involves an intertwining of two principles of
federalism. The first principle is the supremacy of federal law.58
Glover argues that the supremacy of federal law means that
federal jurisdiction over maritime and admiralty law59 preempt the
states ability to provide compensation to workers in the realm of
maritime law. The second principle is our federal systems
recognition of state sovereign immunity.60 The state argues that
state sovereign immunity prevents the federal cause of action
under the Jones Act from forcing open state courthouse doors.
We conclude that the precedent set by the federal
government and other states in applying workers compensation
remedies to government-employed seamen is sufficient reason to
hold that the Jones Act does not preempt the states ability to
provide a remedy. We also agree with the state that sovereign
immunity bars suit under the Jones Act.
Below, we consider each of the two component questions
(the preemption of compensation remedies by the Jones Act and the
inability of the federal government to enforce the Jones Act
against the state) in greater detail. We then address Glovers
third federalism argument that AS 09.50.250(5) impermissibly
discriminates against a federal cause of action.
1. The Jones Act does not preempt and therefore does
not prohibit state attempts to modify remedies
available to state-employed seamen.
Glover argues that the U.S. Constitution prohibits the
application of state workers compensation remedies to seamen, and
uses this argument to suggest that the state has removed a
constitutional remedy (Jones Act suits) and replaced it with an
unconstitutional one (state workers compensation). While Glovers
arguments have some historical precedent, we disagree with his
conclusion that application of workers compensation to state
employees violates the U.S. Constitution.
At the beginning of the 20th century, Congress acted to
provide railroad workers with an effective right to compensation
for workplace injuries. It passed the Federal Employers Liability
Act (FELA) but failed to make any provision for injured maritime
workers.61 The Supreme Court struck down attempts by states to
apply their own workers compensation acts to maritime workers,62
even after Congress passed legislation authorizing the use of
state compensation acts to compensate seamen.63 In response,
Congress extended FELA to seamen through the Jones Act. Case
law from FELA now applies to Jones Act cases.64 The existence of
this federal remedy raises the issue of federal preemption.
We addressed the issue of preemption in Anderson v.
Alaska Packers Association,65 in which we affirmed the workers
compensation boards denial of workers compensation benefits to a
privately employed fisherman.66 In Anderson we concluded that the
federal government had exclusive jurisdiction over any admiralty
case.67 We held that Southern Pacific Co. v. Jensens68 declaration
that states were constitutionally barred from applying their
compensation systems to maritime injuries was still good law
where the injuries were maritime in character.69 The acknowledged
policy behind barring state supplementation of maritime law was
to ensure a nationally uniform system of maritime law.70 As the
superior court noted, however, these key cases involved privately
employed seamen, and thus did not involve the issue of state
sovereignty.
Two factors lead to a different conclusion regarding
the constitutionality of a state remedy for state-employed
seamen. First, the federal government provides at least some of
its employed seamen with federal workers compensation,71 as do
several other states.72 These cases suggest that where a
sovereign declines to submit to Jones Act suits, no
constitutional principles are violated by substituting workers
compensation. Second, the case law justifying preemption has
either failed to weigh the conflicting federal principle of state
sovereign immunity at issue here or has been significantly
narrowed by more recent U.S. Supreme Court cases, as discussed
extensively below. These factors lead us to conclude that the
Federal Constitution does not prohibit the application of state
workers compensation to state-employed maritime workers, and
therefore allows us to evaluate Glovers rights and the states
assertion of sovereign immunity in light of the fact that Glover
is entitled to receive the remedy of workers compensation.
2. The Jones Act does not give state-employed seamen
the right to sue the state without explicit state
consent.
Glover argues that his right to sue the state under
the Jones Act does not require explicit state consent. But the
superior court correctly held that under Alden v. Maine73 the only
times a private party may sue the state are (1) if the state
consented, (2) if Congress had validly abrogated the need for
state consent, or (3) under Ex parte Young.74 The parties do not
attempt to argue this case falls under Ex parte Young. It is
uncontested that the state does not consent it has attempted to
withdraw its consent to suit through AS 09.50.250(5). Because we
hold today that the Alaska Constitution did not foreclose that
limited statutory assertion of sovereign immunity, we also hold
that the state has withdrawn its consent to be sued. Thus, the
only remaining issue is whether Congress, through the Jones Act,
has validly abrogated the requirement that a state consent to
suit.
The Supreme Court has issued two conflicting rulings on
the applicability of the Jones Act to non-consenting states. In
1987 the Court in Welch v. Texas Department of Highways and
Public Transportation75 held that an employee could not bring a
Jones Act claim against her state in federal court because the
federal legislation lacked a clear statement of congressional
intent to abrogate state sovereign immunity.76 Four years later,
in Hilton v. South Carolina Public Railways Commission,77 the
Court extended the Jones Act to state employers who did not
consent to be sued. The Hilton Court concluded that the states
had constructively consented to suit on the basis of stare
decisis any state entering the common-carrier business should
have been on notice that these employees had long had the federal
remedy available to them.78
The superior court, in a well-reasoned analysis,
carefully explored this contradiction and concluded that Hilton
has been subsequently narrowed so much by Alden v. Maine,79
Seminole Tribe of Florida v. Florida,80 and College Savings Bank
v. Florida Prepaid Postsecondary Education Expense Board81 as to
be inapplicable to the current case. We adopt that portion of
the superior courts analysis and attach it as Appendix A below.
We conclude, moreover, that the present case is distinguishable
from Hilton because Glover has access to another remedy, that
provided by the state workers compensation act, while the injured
employee in Hilton did not.82 This distinction is particularly
compelling because Hilton emphasized the importance of the
practical adverse effects of allowing an assertion of sovereign
immunity,83 whereas here the state employees are eligible for
workers compensation.
Finally, Glover argues that even though a federal court
could not force the states consent, this court should take a
novel approach to sovereign immunity and abrogate the states
sovereign immunity in order to respect Glovers constitutional
rights. Glover notes that the state of Maine chose to consent to
suit in Welch v. State of Maine.84 We consider and reject this
argument in Part IV.C. below, concluding that Glovers
constitutional rights have not been violated by AS 09.50.250(5).
3. Alaska Statute 09.50.250(5) does not discriminate
against a federal cause of action.
Glover alleges that under Alden the states application
of sovereign immunity is ineffective because it is targeted at a
single federal cause of action. In Alden the Supreme Court
concluded that Maine had not waived its sovereign immunity and
thus could not be sued under the Fair Labor Standards Act.85 The
Court noted that
[T]here is no evidence that the State has
manipulated its immunity in a systematic
fashion to discriminate against federal
causes of action. 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.[86]
The default position under Maine law was sovereign immunity.87
Maine carved out several exceptions to this default position that
did not include the cause of action in question.88 Here, by
contrast, the default position under Alaska law is a waiver of
sovereign immunity and the statute was enacted to reassert
immunity in this specific instance, making it arguably a specific
federal cause of action.
Glover has seized upon the Alden Courts language to
suggest that because the legislature specifically targeted Jones
Act suits in AS 09.50.250(5), the statute is impermissible. We
reject this argument for two reasons. First, the language in
Alden that Glover relies on was dicta. The Court was responding
to the allegation that Maine had discriminated against a federal
cause of action by finding that there was no evidence of any
discriminatory manipulation.89 The Court did not explain what the
consequence of an explicit attempt to discriminate against a
federal cause of action would have been, and in the absence of
better explanation of the significance of such discrimination we
have no cause to rule a statute unconstitutional on this basis.
Second, despite the fact that a federal cause of action was
specifically named in this statute, there is no evidence that the
state was discriminating against it. To the contrary, the stated
purpose of the amendment was uniformity, not discrimination.
State-employed seamen are treated under the statute in the same
way as all other state employees by receiving full access to the
workers compensation system.
C. Alaska Statute 09.50.250(5) Does Not Violate Glovers
Rights to Due Process, Access to the Courts, Jury
Trial, or Equal Protection Under the Alaska
Constitution.
Glover argues that AS 09.50.250(5) violates several of
his state constitutional rights by depriving him of access to the
courts, due process, and jury trial. He also argues that because
it discriminates between state employees and privately employed
seamen, the statute violates equal protection. Because Alaska
equal protection analysis involves a sliding scale depending on
the rights impinged upon, we begin the analysis with an
examination of Glovers other rights and then address his equal
protection claim.
1. The statute does not violate Glovers
right to a jury trial.
Glover argues that the legislation violates his right
to a jury trial provided by article I, section 16 of the Alaska
Constitution. However, that section preserves the right of trial
by jury to the same extent as it existed at common law.90 As the
state notes, at common law there was no right to sue the
sovereign and therefore no right to a jury trial in such a suit.91
Additionally, the constitutional convention considered proposals
extending the right to a jury trial to all suits brought in the
superior court and rejected those proposals.92 Finally, Alaska
law did not provide a jury trial for suits against the state
until 1975,93 additional proof that the right of a jury trial
against the government did not exist at common law. In light of
these facts, we hold that AS 09.50.250(5) does not violate
Glovers right to trial by jury.
2. The statute does not violate Glovers due process
right to access the courts.
Glover asserts that the statute violates his due
process right to access the superior court. We examined a
related issue in Arctic Structures, Inc. v. Wedmore,94 where we
upheld Alaskas workers compensation statute despite the fact that
it changed the procedural remedy available to workers injured on
the job. We defined the workers due process right as a right to
a substantial and efficient remedy rather than a right to sue in
the superior court.95 Because the state substituted Glovers
former right to sue under the Jones Act for the right to pursue
claims under the workers compensation system, Glover continues to
have access to a substantial and effective remedy. For this
reason, the statute does not violate Glovers due process rights.
3. The statute does not violate Glovers right to
equal protection.
Glover asserts that AS 09.50.250(5) violates his right
to equal protection. Equal protection analysis involves a three-
step process under the Alaska Constitution, in which the court
determines the weight of the individual interest at stake, the
importance of the governments interest, and the closeness of the
fit between the statute and the governments objective. As we
recently summarized in C.J. v. State, Department of Corrections:96
We analyze equal protection claims under a
sliding scale approach which places a greater
or lesser burden on the state to justify a
classification depending on the importance of
the individual right involved. If the right
impaired by the challenged legislation is not
very important, the State need only show that
its objectives are legitimate and that the
legislation bears a substantial relationship
to its purpose. At the other end of the
continuum, legislation that impairs one of
the most important individual interests will
be upheld only if it furthers the States
compelling interest and if it is the least
restrictive means available to achieve the
States objective.[97]
The state argues that before applying such a test, the court must
first determine whether the statute is an exercise of the states
police power which classifies similarly situated people
differently.
i. Threshold analysis: The statute treats
similarly situated people disparately.
The state argues that equal protection analysis is only
applied after a party has met the threshold showing necessary for
an equal protection claim.98 In Matanuska-Susitna Borough School
District v. State99 we held, Where there is no unequal treatment,
there can be no violation of the right to equal protection of
law.100 The state argues that Glover does not meet this threshold
showing.
The states argument is unavailing.101 While it is true
that the statute treats all state employees alike, it also treats
state-employed seamen differently from privately employed seamen
performing the same work and facing the same risks. Under these
circumstances we believe that the situation survives threshold
analysis and merits application of the sliding scale test.
ii. Glovers interest
Glover argues that his fundamental interests are
affected, including his rights under the Jones Act, his right to
a jury trial, and right to access the courts. Because we have
already held his jury trial and court access arguments unavailing
Glovers only remaining interest is his right to sue under the
Jones Act.
The state characterizes Glovers interest as economic
and as the interest in suing a particular entity and notes that
both interests are of limited constitutional importance. In
Wilson v. Municipality of Anchorage,102 we found that Wilsons
interest in suing a particular entity was not fundamental.103 In
Evans ex rel. Kutch v. State, we held that the plaintiffs
interests in unlimited damages were merely economic and do not
count as important interests under our equal protection interest.104
In Gilmore v. Alaska Workers Compensation Board,105 we held that
interest in workers compensation benefits warranted scrutiny at
the low end of the scale.106
Because Glover has workers compensation available to
him, what he is deprived of in this case is only the right to sue
the entity of his choice and potentially the ability to collect a
greater amount of money. Because Glovers interests are economic,
the states classification need only bear a fair and substantial
relationship to the governments legitimate purpose behind the
statute in order to survive.107
iii. The states interest
Glover argues the states interest is illegitimate
because it violates his Jones Act rights. We find this argument
unpersuasive.108 The transmittal letter accompanying the bill
which eventually became AS 09.50.250(5) stated that the bill
would provide a uniform equitable remedy for work injuries of all
state employees under a single compensation system.109 The letter
also indicated that having one system would save adjudication
costs and lower the cost to the state.110 We agree with the
superior court that AS 09.50.250(5)s purpose of creating a
uniform employee compensation system is legitimate.
iv. Closeness of the fit
We turn to the question whether the state has
established a fair and substantial relationship between the
statute and the states objective. In this case, the legislation
narrowly targets the states objective to create a uniform system
for compensating state employees. The legislation is aimed at
the only state employees presently authorized to file a direct
civil (negligence) action against their employer for on-the-job
injury or illness.111 Moreover, we have held that there is a
substantial fit between the objectives of Alaskas workers
compensation system and the limitations it places on the
employers liability.112
Glover argues that the means do not fit the end because
injured seamen will simply seek refuge in Washington state courts
under the Jones Act and will thereby prevent uniformity and
increase Alaskas litigation costs. The state strongly disagrees
that this would be a viable avenue for Glover, arguing that the
foreign court either must respect Alaskas sovereign immunity in a
situation such as this where there is no choice of law issue or
that the court ought to do so for reasons of comity.113 We take
judicial notice of the fact that a case Glover filed in the trial
court of Washington state has been dismissed for just this
reason, and is currently on appeal.114 More importantly, we hold
that because only a fair and substantial fit is needed, any
errant cases heard in Washington state will not invalidate the
statute.
In sum, AS 09.50.250(5) passes constitutional muster
under equal protection analysis because the legislation impacts
an economic right and bears a fair and substantial relationship
to the legitimate governmental objective of creating a uniform
system for compensating state employees.
D. The Superior Court Did Not Abuse Its Discretion in
Reducing the Award of Attorney Fees to $1000.
The state argues that the superior court erred in
reducing the award of attorneys fees to the state to $1000 under
Civil Rule 82(b)(3)(K).115 The superior court found that the
presumptive award of fees to the state is $12,940.97, which was
twenty percent of actual, reasonable fees. The court reduced the
fee award to $1000 based on equitable factors.
The state contends that Glover should not be treated as
a public interest litigant. The state argued and won this point
below. Judge Collins held that the action was clearly motivated
primarily by a private economic interest in damages,116 a
determination Glover does not appeal. The state reiterates its
argument in briefing before this court, this time adding that the
superior courts substantial fee reduction amounted to an
impermissible de facto application of the public interest
litigant exception.
We disagree with the states characterization of the
superior courts action. The public interest litigant exception
is not the exclusive avenue whereby a variation on presumptive
awards may be justified. In our recent decision in State v.
Native Village of Nunapitchuk,117 we upheld the constitutionality
of an act eliminating the public interest litigant exception but
also noted that:
[Rule 82(b)(3)(I)] continues to apply to all
cases, without discriminating between those
brought for self-interested reasons and those
intended to effectuate public policies. Trial
courts remain free to reduce awards that
would otherwise be so onerous to the losing
party as to deter similarly situated
litigants including litigants that would
have previously been identified as public
interest litigants from accessing the
courts. In determining whether an award would
deter similarly situated litigants from
accessing the courts, trial courts may
continue to consider all relevant factors,
including the nature of the claim advanced
and the economic incentives for similarly
situated litigants to bring similar
claims.[118]
Judge Collins cited several unusual circumstances that led to her
determination that the fee award should be reduced. Those
circumstances included the fact that one motivation behind Rule
82 to encourage settlements was almost certainly not considered
by the state because of the significant constitutional issues
involved. We agree, but believe that the superior courts
decision was more consistent with the rationale expressed in Rule
82(b)(3)(I) and (J).
Subsection (I) provides that the court may vary an
award based on the extent to which a given fee award may be so
onerous to the non-prevailing party that it would deter similarly
situated litigants from the voluntary use of the courts.
Subsection (J) provides for variation based on the extent to
which the fees incurred by the prevailing party suggest that they
had been influenced by considerations apart from the case at bar,
such as a desire to discourage claims by others against the
prevailing party . . . . Glover, as the first seaman to
challenge this statute, faced a disproportionate financial burden
because the state was defending the statute in order to preserve
its immunity with respect to all mariners in the future, and thus
was likely to invest significant resources in the case and very
unlikely to settle. Moreover, Judge Collins noted that the only
issue actually litigated was a constitutional question of first
impression, and that both parties submitted excellent briefing.
The state cites F/V American Eagle v. State119 for the
proposition that economically motivated private litigation does
not meet the requirement to bar an award of costs even where the
case touches upon constitutional issues. However, F/V American
Eagle is distinguishable by its posture. In that case we
determined that the litigant was not entitled to public interest
litigant status as a matter of law, and so finding, held that the
trial courts discretionary award of fees was reasonable.120 Here,
in contrast, the court exercised its discretion to determine that
a reduction in the fee award was warranted. Because the court
did not abuse its discretion in awarding fees and because the
award was not manifestly unreasonable, we affirm the award of
fees.
V. CONCLUSION
We AFFIRM the superior courts opinion on all counts,
holding that AS 09.50.250(5) is constitutional because it does
not violate article II, section 21 of the Alaska Constitution, is
not preempted by the Jones Act, and does not violate Glovers
rights to due process, court access, jury trial, or equal
protection under the Alaska Constitution. We AFFIRM the superior
courts reduction of attorneys fees because the award was not
manifestly unreasonable.
APPENDIX A1
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
FIRST JUDICIAL DISTRICT AT JUNEAU
JESSE GLOVER, )
Plaintiff, )
)
v. )
)
STATE OF ALASKA, DEPT. )
OF TRANSPORTATION, )
ALASKA MARINE )
HIGHWAY SYSTEM, )
Defendant. )
__________________________) Case No. 1JU-04-535CI
ORDER ON PLAINTIFF GLOVERS MOTION FOR DECLARATORY
JUDGMENT AND STATES MOTION FOR SUMMARY JUDGMENT
. . . .
1. Alaska withdrew consent to Jones Act and general
maritime suits by state employees by enacting AS
09.50.250(5).
It is not disputed that Alaska withdrew its consent to
be sued in state court for Jones Act and general maritime claims
by injured state employees by enacting AS 09.50.250(5). Glover
argues, however, that because Alaska chose to enter the field of
maritime commerce, it implicitly or constructively consented to
Jones Act and maritime suits in its own courts.
Glover cites Hilton v. South Carolina Public Railways
Commission2 as support for a theory of constructive consent to
suit. Hilton concerned an injured employee of a state-owned
railroad that sued his state employer under the Federal Employers
Liability Act (FELA). The Court held that South Carolina was
subject to suit by an injured state employee suing under FELA
(and, by implication, the Jones Act) and that the Eleventh
Amendment immunity of the state did not bar the suit.3
The Hilton decision relied on the courts 1964
interpretation of FELA language in Parden v. Terminal Railway of
Alabama Docks Department4 and general principles of stare decisis
that courts should generally stand by settled principles of law.
In the 1964 decision in Parden the Court held that when Congress
enacted FELA and used the phrase [e]very common carrier by
railroad, 45 U.S.C. 51, to describe the class of employers
subject to its terms, it intended to include state-owned
railroads.5 The Parden Court further held that states that
engaged in interstate commerce by operating railroads
constructively consented to suits under FELA.6 The Parden Court
also held that FELA was enacted in the exercise of Congress
constitutional power to regulate interstate commerce.7
In 1987, the U.S. Supreme Court overruled that portion
of Parden that stood for the proposition that FELA constituted a
waiver of the Eleventh Amendment in Welch v. Texas Department of
Highways & Public Transportation.8 In Welch, a Jones Act suit
against the State of Texas was brought in federal court. The
Court held that the Jones Act, which applies the FELAs remedial
provisions to seamen, does not amount to a clear statement of
Congressional intent to abrogate the states Eleventh Amendment9
sovereign immunity.10 The Court held that employee Welch could
not bring her Jones Act claim against the state in federal court
in the absence of a clear statement in the legislation to
abrogate state sovereign immunity.11
Hilton was decided in 1991. The Hilton majority
concluded that upsetting the long-standing FELA liability rule
set forth in Parden in state court actions would be unfair,
particularly since Hilton would be left with no remedy for his
injuries unless his FELA claim was recognized and since many
states workers compensation laws specifically exclude railroad
workers from coverage because of the assumption that FELA
provides adequate protection for those workers.12
The Hilton court recognized that its decision
represented an exception to the clear statement rule announced in
Welch.13 The court held that the cases were distinguishable
because the Eleventh Amendment does not apply in state courts
and, thus, the Parden decision was based solely on principles of
statutory construction of FELA as opposed to the constitutional
construction issues presented in Welch.14
The tension between Welch and Hilton is unmistakable,
as noted in Justice OConnors dissent in Hilton. With clear
insight into future supreme court decisions on state sovereign
immunity, she stated:
The clear statement rule is not a mere canon
of statutory interpretation. Instead, it
derives from the Constitution itself. The
rule protects the balance of power between
the States and the Federal Government struck
by the Constitution. Although the Eleventh
Amendment spells out one aspect of that
balance of power, the principle of federalism
underlying the Amendment pervades the
constitutional structure . . . .[15]
Eight years after Hilton, the Court decided Alden v.
Maine.16 In the 1999 decision in Alden, the Court indicated that
Hilton is to be narrowly construed. The Alden Court explained
that suit against the state in Hilton was allowed because the
state, [by entering into the railroad business after the Court
had earlier held that all who operated railroads would be subject
to suit by injured workers under FELA effectively] consented to
suit by its injured railroad workers.17 Sovereign immunity was
not raised as an issue in Hilton, likely because the case was
decided after the Court had decided Parden v. Terminal Railway of
Alabama Docks Department,18 which held that Alabama had
constructively consented to suit by engaging in the railroad
business after the enactment of FELA, but before the Court
subsequently completely overruled Pardens theory of constructive
waiver in College Savings Bank v. Florida Prepaid Postsecondary
Education Expense Board.19
The Alden majority described the limited import of
Hilton as follows:
Our decision was controlled and informed by
stare decisis. A generation earlier we had
held that because the FELA made clear that
all who operated railroads would be subject
to suit by injured workers, States that chose
to enter the railroad business after the
statutes enactment impliedly waived their
sovereign immunity from such suits. . . .
Some States had excluded railroad workers
from the coverage of their workers
compensation statutes on the assumption that
the FELA provided adequate protection for
those workers. Closing the courts to FELA
suits against state employers would have
dislodged settled expectations and required
an extensive legislative response.
There is language in Hilton which gives
some support to the position of petitioners
here but our decision did not squarely
address, much less resolve, the question of
Congress power to abrogate States immunity
from suit in their own courts. The
respondent in Hilton . . . neither contested
Congress constitutional authority to subject
it to suits for money damages nor raised
sovereign immunity as an affirmative defense
. . . .
. . . When so read, we believe the
[Hilton] decision is best understood not as
recognizing a congressional power to subject
nonconsenting States to private suits in
their own courts, nor even as endorsing the
constructive waiver theory of Parden, but as
simply adhering, as a matter of stare decisis
and presumed historical fact, to the narrow
proposition that certain States had consented
to be sued by injured workers covered by the
FELA, at least in their own courts.[20]
On the same day in 1999 that Alden was decided, the
Court also decided College Savings Bank v. Florida Prepaid
Postsecondary Education Expense Board.21 There, the Court stated
that Pardens theory that states can constructively consent to
waiver of their sovereign immunity by engaging in interstate
commerce was overruled.22 The Court stated:
We think the constructive-waiver experiment
of Parden was ill-conceived, and see no merit
in attempting to salvage any remnant of it. .
. . Whatever may remain of our decision in
Parden is expressly overruled.[23]
The Hilton statutory construction theory was based on
the theory expressed in Pennsylvania v. Union Gas Co.24 that
Congress has the power to unilaterally abrogate the States
immunity from suit under the Commerce Clause, under which FELA
and the Jones Act were promulgated. Union Gas was overruled in
Seminole Tribe of Florida v. Florida.25
Unlike Hilton, sovereign immunity has clearly been
raised as a defense in this case and AS 09.50.250(5) is
unequivocal. Since there is no express consent to suit and since
the theory of waiver of sovereign immunity by constructive
consent by conduct has been overruled by the United States
Supreme Court, there is no reasonable basis on which constructive
consent to suit can be inferred in this case. Also, this is not
a case where, as in Hilton, the injured worker is left without
any remedy since AS 09.50.250(5) expressly provides for workers
compensation act benefits.
. . . .
/s/ Patricia Collins
Superior Court Judge
_______________________________
1 Ch. 30, 1, SLA 2003.
2 46 U.S.C. 30104-05 (2006). This provision was located
at 46 U.S.C. App. 688 when the parties submitted briefing in
this case. Section 688 was recodified on October 6, 2006, see
Pub. Law 109-304, 120 Stat. 1501, and although minor changes were
made to the text of the provision during the recodification, they
do not impact our analysis in this case.
3 AS 23.30.001-.400.
4 Citizens Coalition for Tort Reform, Inc. v. McAlpine,
810 P.2d 162, 164 n.3 (Alaska 1991).
5 Alaska Placer Co. v. Lee, 553 P.2d 54, 63 (Alaska
1976).
6 Glover does not adopt the terminology of absolute
waiver, preferring to cast the question as whether the waiver
occurred in the constitution or in the statute. Nonetheless,
Glovers position that the legislature lacks authority to place
limitations on the waiver amounts to an adoption of the absolute
waiver position.
7 Ch. 101, 26.01, SLA 1962 (prohibiting actions based on
(1) state employee exercising due care or discretion; (2) damages
due to quarantine; (3) assault, battery, false imprisonment,
false arrest, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights).
The potential impact of this litigation on the other statutory
exceptions to the waiver of sovereign immunity received no
attention in Glovers briefing before this court and only limited
attention in his briefing before the superior court. There,
Glover contended that the states other claims of sovereign
immunity might derive from other sources and thus might
permissibly coexist with his interpretation of the constitutional
provision. We decline to reach this issue.
8 See, e.g., Angnabooguk v. State, 26 P.3d 447, 453
(Alaska 2001) (Under the Alaska Tort Claims Act, AS 09.50.250,
the State is immune from certain types of tort claims.);
McCutcheon v. State, 746 P.2d 461, 468 (Alaska 1987) ([T]he state
enjoys immunity from the suit under AS 09.50.250(3), which places
libel actions among the express exceptions to the waiver of
sovereign immunity.); State v. Dupere, 709 P.2d 493, 496 (Alaska
1985) (upholding procedural statutory restrictions on the right
to sue the state under AS 09.50.250); Freeman v. State, 705 P.2d
918, 920 (Alaska 1985) (State liability is the rule; immunity is
the exception.); Univ. of Alaska v. Natl Aircraft Leasing, Ltd.,
536 P.2d 121, 122 (Alaska 1975) (Within certain limitations, one
is authorized by statute to sue the State of Alaska on a
contract, quasi-contract or tort claim.); Etheredge v. Bradley,
480 P.2d 414, 416 n.7 (Alaska 1971) (The amendment to the statute
was introduced by the Senate Judiciary Committee in response to
questions raised by this court . . . in order to specifically
spell out exactly what claims could be brought against the state
under [AS 09.50.250-.300] ) (internal quotation omitted).
9 794 P.2d 108 (Alaska 1990).
10 Id. at 111.
11 Initially the sovereign immunity clause was section 12
of the legislative article, though in the final constitution it
became article 21.
12 6 Proceedings of the Alaska Constitutional Convention
(PACC) App. V at 29-38 (Dec. 14, 1955).
13 Id. at 32.
14 Alaska Constitutional Convention Legislative Branch
Committee, Commentary on Proposed Article on Legislative Branch
(Dec. 14, 1955) (Alaska State Archives: Constitutional Convention
310.05 at 5).
15 7 PACC 4 (Index 1965). The main issues facing the
legislative committee were unicameralism versus bicameralism, age
and residence requirements for legislators, length of legislative
sessions, salaries, and legislative rules and organization.
Victor Fischer, Alaskas Constitutional Convention, 84-85 (1975).
16 3 PACC 1703-10 (Jan. 10, 1956).
17 Id. at 1703-04.
18 Id. at 1707-08.
19 Id.
20 Id. at 1704-05.
21 Id. at 1705.
22 Id. (emphasis added).
23 Sundborg was the Chairman of the Committee on Style and
Drafting. Fischer, supra note 15, at 267.
24 3 PACC 1706 (Jan. 10, 1956).
25 Id.
26 Id. at 1710.
27 3 PACC 1818-19 (Jan. 11, 1956).
28 Id. at 1818.
29 Id. at 1818-19 (emphasis added).
30 Id. at 1819.
31 Alaska Constitutional Convention Legislative Branch
Committee, First Enrolled Copy of Proposed Article on Legislative
Branch (Jan. 12, 1956) (Alaska State Archives: Constitutional
Convention 410.02 at 4-5).
32 See Matthews v. Quinton, 362 P.2d 932, 944 (Alaska
1961) (noting that every delegate in the convention has his or
her own reasons for voting and the debate may not reflect the
reasons held by the majority).
33 See discussion of Commentary on Proposed Article on
Legislative Branch, supra, at 8.
34 As quoted above, the only discussion of whether or not
the committee intended an absolute waiver was indirect, at best,
asking if the legislative committee had intended to create
various exceptions rather than speaking in favor or against such
exceptions.
35 The name of this canon derives from a remark made by
Sherlock Holmes in Sir Arthur Conan Doyles short story Silver
Blaze. Holmes solved the case by recognizing the import of the
fact that a dog in the stable had failed to bark when the
criminal was in the stable, thereby concluding that the criminal
was someone the dog knew. Arthur Conan Doyle, The Memoirs of
Sherlock Holmes 3 (Oxford Univ. Press 2000).
36 Church of Scientology of Cal. v. I.R.S., 484 U.S. 9, 17-
18 (1987) ([W]e think this is a case where common sense suggests,
by analogy to Sir Arthur Conan Doyles dog that didnt bark, that
an amendment having the effect petitioner ascribes to it would
have been differently described by its sponsor, and not nearly as
readily accepted by the floor manager of the bill.); see also
Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 63 (2004)
(invoking dog that didnt bark canon to conclude that amendment to
statute did not mean to alter additional section of statute).
37 3 PACC 1827 (Jan. 11, 1956).
38 6 PACC app. V at 32 (Dec. 14, 1955); Alaska
Constitutional Convention Legislative Branch Committee, First
Enrolled Copy of Proposed Article on Legislative Branch (Jan. 12,
1956) (Alaska State Archives: Constitutional Convention 410.02 at
4-5).
39 6 PACC app. VI at 12 (Feb. 5, 1956).
40 See 1 Journal of the Alaska Constitutional Convention,
Nov. 10, 1955, at 6, Rule 16(c) (stating that the style and
drafting committee shall have no authority to change the sense or
purpose of any proposal referred to it).
41 4 PACC 2819 (Jan. 21, 1956).
42 4 PACC 3047-49 (Jan. 25, 1956).
43 Id. at 3048.
44 5 PACC 3178 (Jan. 26, 1956).
45 4 PACC 2818-45 (Jan. 21, 1956).
46 Alaska Const. art. XII, 11 provides:
As used in this constitution, the terms by
law and by the legislature, or variations of
these terms, are used interchangeably when
related to law-making powers. Unless clearly
inapplicable, the law-making powers assigned
to the legislature may be exercised by the
people through the initiative, subject to the
limitations of article XI.
47 See infra Part IV.A.5.
48 Blacks Law Dictionary 1241 (8th ed. 2004).
49 5 PACC 3178 (Jan. 26, 1956).
50 Territory of Alaska, Session Laws, ch. 170, SLA 1957.
51 Alaska Legislative Council, Memorandum Revised Code of
Civil Actions and Proceedings (Feb. 17, 1961) at 23.
52 Where the 1957 act said Any person or corporation
having any claim . . . shall have a right of civil action against
the Territory . . ., the 1962 statute said, Any person or
corporation having a claim against the state may bring an action
against the state in the superior court.
53 See, e.g., Krouse v. State, 285 N.E.2d 736, 742 (Ohio
1972) (constitutional provision inserted to abolish the defense
of governmental immunity . . . not to make the state amenable to
suit without its express consent); Kallembach v. State, 385
N.W.2d 215, 218 (Wis. App. 1986) ([T]here must exist express
legislative authorization in order for the state to be sued.)
(quotations omitted, emphasis in original).
54 Clouse ex rel. Clouse v. State, 16 P.3d 757, 764 (Ariz.
2001).
55 Alaska Constitutional Convention Legislative Branch
Committee, Commentary on Proposed Article on Legislative Branch
(Dec. 14, 1955) (Alaska State Archives: Constitutional Convention
310.05 at 5).
56 556 P.2d 1257 (Alaska 1976).
57 Id. at 1261.
58 This derives from the supremacy clause of the U.S.
Constitution. U.S. Const. art. VI.
59 The U.S. Constitution extends the federal judicial
powers to all cases of admiralty and maritime jurisdiction. U.S.
Const. art. III, 2.
60 State sovereign immunity is addressed in the Eleventh
Amendment to the Constitution, but the Supreme Court has held
that as the Constitutions structure, its history, and the
authoritative interpretations by this Court make clear, the
States immunity from suit is a fundamental aspect of the
sovereignty which the States enjoyed before the ratification of
the Constitution, and which they retain today. Alden v. Maine,
527 U.S. 706, 729 (1999). Accordingly, the Eleventh Amendment
confirms state sovereign immunity but does not by its terms limit
it: The Eleventh Amendment confirmed, rather than established,
sovereign immunity as a constitutional principle; it follows that
the scope of the States immunity from suit is demarcated not by
the test of the Amendment alone but by fundamental postulates
implicit in the constitutional design. Id. at 728-29.
61 U.S.C. ch. 149, 1-10, 35 Stat. 66 (1908) (codified as
amended at 45 U.S.C. 51-60).
62 S. Pac. Co. v. Jensen, 244 U.S. 205, 217 (1917)
(holding that where Congress was silent on matter of interstate
commerce, commerce was to be free and New York could not apply
its workers compensation statute to foreign ships visiting its
ports); see also Mondou v. New York, New Haven, & Hartford R.R.
Co., 223 U.S. 1, 54-55 (1912) ([P]rior to the present act, the
laws of the several states were regarded as determinative of the
liability of employers engaged in interstate commerce for
injuries received by their employees while engaged in such
commerce. . . . [But n]ow that Congress has acted, the laws of
the states, in so far as they cover the same field, are
superseded, for necessarily that which is not supreme must yield
to that which is.).
63 Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 163-64
(1920) (Congress undertook to permit application of workmens
compensation laws of the several states to injuries within the
admiralty and maritime jurisdiction . . . . [T]he enactment is
beyond the power of Congress.); Washington v. W.C. Dawson & Co.,
264 U.S. 219, 227-28 (1924) (holding that 1922 statute attempting
to extend state workers compensation to injured maritime workers
exceeded congressional authority because maritime law required
uniform federal action).
64 Abbott v. State, 979 P.2d 994, 996 (Alaska 1999).
65 635 P.2d 1182 (Alaska 1981).
66 Id. at 1186.
67 Id. at 1183-84 (citing U.S. Const. art. III, 2 and 28
U.S.C. 1333).
68 244 U.S. 205 (1917).
69 Anderson, 635 P.2d at 1184-85.
70 Id. at 1184 (citing The Lottawanna, 88 U.S. (21 Wall.)
558, 575 (1874)).
71 5 U.S.C. 8101-93.
72 Maloney v. State, 144 N.E.2d 364, 366 (N.Y. 1957)
(holding that exclusive remedy of state employed seamen is
workers compensation); Midgett v. North Carolina Dept of Transp.,
568 S.E.2d 643, 671 (N.C. Ct. App. 2002) (holding that state tort
claims act does not waive sovereign immunity to Jones Act claims
by state employee); Ortega v. Port of Portland, 936 P.2d 1037,
1049 (Or. Ct. App. 1997) (holding general maritime law does not
preempt Oregons assertion of sovereign immunity for state-
employed seamen entitled to workers compensation); Lyons v. Texas
A&M Univ., 545 S.W.2d 56 (Tex. App. 1976) (holding workers
compensation act remedies exclusive where state asserts sovereign
immunity from Jones Act suit).
73 527 U.S. 706, 755-58 (1999).
74 209 U.S. 123 (1908).
75 483 U.S. 468 (1987).
76 Id. at 475.
77 502 U.S. 197 (1991).
78 Id. at 205-07.
79 527 U.S. 706, 736-38 (1999).
80 517 U.S. 44, 72-73 (1996).
81 527 U.S. 666, 680 (1999).
82 See Hilton, 502 U.S. at 202-03.
83 Id. at 204.
84 853 A.2d 214 (Maine 2004).
85 527 U.S. at 758.
86 Id.
87 Id. at 757-58.
88 Id. at 758.
89 Id.
90 Alaska Const. art I, 16.
91 See Alden, 527 U.S. at 713.
92 2 PACC 1351-52, 1355 (Jan. 6, 1956); see Evans ex rel.
Kutch v. State, 56 P.3d 1046, 1050 (Alaska 2002) (analyzing right
to jury trial in the context of damage caps).
93 Former AS 09.50.290. Repealed by ch. 147, 1, SLA 1975.
94 605 P.2d 426 (Alaska 1979).
95 Id. at 436.
96 151 P.3d 373 (Alaska 2006).
97 Id. at 378 (quotations and citations omitted).
98 See Evans ex rel. Kutch v. State, 56 P.3d 1046, 1068
(Alaska 2002).
99 931 P.2d 391 (Alaska 1997).
100 Id. at 397 (upholding statute requiring local
contribution for educational expenses without applying sliding
scale because plaintiffs did not make threshold showing that
educational interests of the children were disparately affected).
101 The state also cites to Krause v. State, 285 N.E.2d 736
(Ohio 1972), as persuasive authority that equal protection does
not operate as a backdoor mechanism to force state courts open to
suits merely because the state allows for causes of action
against private entities in similar circumstances. We decline to
reach the question whether the assertion of sovereign immunity
will ever give rise to a successful equal protection claim.
102 669 P.2d 569 (Alaska 1983).
103 Id. at 572 (holding that prohibition on suing
municipality for negligent health or safety inspections did not
violate equal protection where other remedies, namely suing
private individual responsible for the violations were still
available).
104 56 P.3d 1046, 1052-53 (Alaska 2002).
105 882 P.2d 922 (Alaska 1994), superceded by statute as
recognized in Dougan v. Aurora Elec. Inc., 50 P.3d 789, 797
(Alaska 2002).
106 Id. at 926-27.
107 See id. at 927.
108 Glovers citation to the illegitimate interests the
court referred to in Malabed v. N. Slope Borough, 70 P.3d 416,
421-22 (Alaska 2003), is distinguishable because Malabed involved
racially based hiring preferences. Enacting a statute which will
result in different compensation schemes for state employees and
private employees is not comparable to instituting racially based
preferences.
109 2003 House Journal 435.
110 Id. at 436.
111 Id. at 435-36.
112 Arctic Structures, Inc. v. Wedmore, 605 P.2d 426, 437
(Alaska 1979).
113 As the state notes in its brief, Washington courts have
previously declined to hear cases against the State of Oregon on
comity grounds. Williams v. State, 885 P.2d 845, 852 (Wash. Ct.
App. 1994); Fernandez v. State, 741 P.2d 1010, 1017 (Wash. Ct.
App. 1987).
114 Glover v. State of Alaska, Dept of Transp., Alaska
Marine Highway Sys., No. 05-2-02811-1, Order Granting Defendants
Motion to Dismiss for Lack of Subject Matter Jurisdiction (Wash.
Super. Ct. Feb. 2, 2007).
115 Civil Rule 82(b)(3)(K) authorizes the superior court to
consider other equitable factors deemed relevant for the purpose
of determining if a variation from the presumptive fee is
warranted.
116 A party does not qualify as a public interest litigant
under Alaska case law if he would have had sufficient economic
incentive to file suit even if the action involved only narrow
issues lacking general importance. Murphy v. City of Wrangell,
763 P.2d 229, 233 (Alaska 1988).
117 156 P.3d 389 (Alaska 2007).
118 Id. at 406. Because the act only applied to cases
filed after its effective date, the statute was not considered by
the superior court or the parties in this case.
119 620 P.2d 657, 673-74 (Alaska 1980).
120 Id.
1 We have edited the superior courts decision to conform
to our technical rules.
2 502 U.S. 197 (1991).
3 Id. at 204-05.
4 377 U.S. 184, 187-88 (1964).
5 Hilton, 502 U.S. at 201 (quoting Parden, 377 U.S. at
187-88).
6 Parden, 377 U.S. at 192.
7 Id. at 190-91.
8 483 U.S. 468, 476-78 (1987).
9 The Eleventh Amendment to the United States
Constitution provides: 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.
10 Welch, 483 U.S. at 475 (Congress has not expressed in
unmistakable statutory language its intention to allow States to
be sued in federal court under the Jones Act.).
11 Id.
12 Hilton v. South Carolina Pub. Ry. Commn , 502 U.S. 197
(1991).
13 Id.
14 Id.
15 Id. at 209 (OConnor, J., dissenting).
16 527 U.S. 706 (1999).
17 Id. at 735-37.
18 377 U.S. 184 (1964).
19 527 U.S. 666, 680 (1999) ([W]e cannot square Parden
with our cases requiring that a States express waiver of
sovereign immunity be unequivocal.).
20 Alden, 527 U.S. at 736-38 (citations omitted).
21 527 U.S. 666 (1999).
22 Id. at 680.
23 Id.
24 491 U.S. 1, 17 (1989).
25 517 U.S. 44, 72-73 (1996). United States Supreme Court
decisions in the area of sovereign immunity have been sharply
divided and might be viewed as, at times, inconsistent. See
Erwin Chemerinsky, Federal Jurisdiction 7.3, at 398-403 (3d ed.
1999). However, several conclusions drawn by Professor
Chemerinsky accurately reflect the current status of the law:
[C]onstructive waiver of Eleventh Amendment
immunity is virtually nonexistent. If it
ever will exist, it will be in situations
where Congress indicates a clear intent to
make states liable in federal court if they
engage in a particular activity, and then a
state voluntarily chooses to engage in that
conduct. The congressional desire to make
states liable must be in unmistakable
language in the statute itself and it must be
an area where the state realistically could
choose not to engage in the activity.
Id. 7.7, at 436 (citations omitted).
The current law is that Congress may
authorize suits against state governments
only when it is acting pursuant to 5 of the
Fourteenth Amendment. Congress may not
override the Eleventh Amendment when acting
under any other constitutional authority.
Id. at 437 (citations omitted).
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