Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions

Touch N' Go
®, the DeskTop In-and-Out Board makes your office run smoother.

  This site is possible because of the following site sponsors. Please support them with your business.

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

Glover v. State, Dept of Transportation, Alaska Marine Highway System (01/18/2008) sp-6222, 175 P3d 1240

     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,


) Supreme Court No. S- 12220/S-12329
Appellant/ )
Cross-Appellee, )
) Superior Court No.
v. ) 1JU-04-00535 CI
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.   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
     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
     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
           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
          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.
          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
     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
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
          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
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
          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
          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
          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
           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
            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
          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
          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

               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
          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
          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
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
          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
JESSE GLOVER,            )
     Plaintiff,               )
     v.                  )
HIGHWAY SYSTEM,          )
     Defendant.               )
__________________________)   Case No. 1JU-04-535CI


          . . . .

          1.   Alaska withdrew consent to Jones Act and general
maritime            suits by state employees by enacting AS
          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

     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

     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

     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.

     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

     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

     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

     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

     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

     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).

This site is possible because of the following site sponsors. Please support them with your business.
Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights