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May States Refuse to Enforce Federal Law?
In Alden v. Maine, (1) the U.S. Supreme Court held that under the structure of the federal Constitution and historic principles of sovereign immunity, Congress could not authorize suits against states in state courts on federal claims without the consent of the state to be sued, except when Congress acts pursuant to its Fourteenth Amendment powers . (2)However, a subsequent decision of the Seventh Circuit in Erickson v. Board of Governors, 207 F 3d 945 (7th Cir. 2000), cert. den. sub nom United States v. Board of Governors, 2001 WL 178191 (Feb. 26, 2001), suggests that the decision may be more limited in scope than it initially appeared. The Seventh Circuit correctly predicted the outcome of the Garrett case, that sovereign immunity bars a damage suit under Title I (employment) of the Americans with Disabilities Act (ADA) against a state in federal court. It then went on to comment on the limited significance of its decision.
All our holding means is that private litigation to enforce the ADA may not proceed in federal court. Erickson may repair to an Illinois court-for although states may implement a blanket rule of sovereign immunity, see Alden v. Maine, 527 U.S. 706, 119 S. Ct. 2240, 144 L. Ed. 2d 636 (1999), Illinois has not done this. Having opened its courts to claims based on state law, including its own prohibition of disability discrimination by units of state government, see 775 ILCS 5/1-102, 5/2-101(B)(1)©), Illinois may not exclude claims based on federal law Howlett v. Rose, 496 U.S. 356, 367-75, 110 S. Ct. 2430, 11 L.Ed. 2d 332 (1990); FERC v. Mississippi, 456 U.S. 742, 759-69, 102 S. Ct. 2126, 72 L.Ed. 2d 532 (1982); Testa v. Katt, 330 U.S. 386, 67 S. Ct. 810, 91 L. Ed. 967(1947).
207 F. 3d at 952. It concluded that "this suit belongs in state court." Id.
Howlett involved a suit in state court under Section 1983 seeking damages from a school board for an unconstitutional search and seizure. The Florida courts held that although school districts are subject to suit for tort claims and officials are subject to 1983 actions in their individual capacity, the statute that waived sovereign immunity did not apply to 1983 actions against school boards. The U.S. Supreme Court unanimously reversed. It held that federal law is enforceable in state courts because the Supremacy Clause makes those laws the supreme law of the land. The case does not present the question whether Congress can require the States to create a forum with the capacity to enforce federal statutory rights. Florida has such a forum in its Circuit Courts, which can enter judgments against school boards and against individuals under Section 1983. Florida cannot in those circumstances refuse to entertain a 1983 claim against a school board.
However, in Alden v. Maine, the Court distinguished Howlett, asserting that it involved a suit against a local entity rather than a State itself. 527 U.S. at 740. In Alden, Maine did precisely what the Court in Howlett objected to, it excluded from the state law waiving immunity claims for overtime under federal law because state law did not allow for overtime payments for state workers. Therefore, the principle set forth in Howlett and suggested in Erickson may not be applicable to suits against states. On the other hand, it may be argued that Maine had no statute comparable to the federal overtime law, rather it had a conflicting statute, whereas in Erickson, Illinois had a statute under which the state could be sued for the same type of discrimination for which the ADA creates liability. A focus on a comparable state substantive law enforceable in state courts against the state is given support in a footnote in Martinez v. California, 444 U.S. 277, 284, n.7 (1980):
We have never considered, however, the question whether a State must entertain a claim under § 1983. We note that where the same type of claim, if arising under state law, would be enforced in the state courts, the state courts are generally not free to refuse enforcement of the federal claim.
A second case cited by the 7th Circuit in Erickson is Federal Energy Regulatory Commission v. Mississippi, 456 U.S. 742 (1982). That case held that it did not violate the Tenth Amendment to require a state administrative agency applying federal law to follow certain procedures in the administrative process. The Court noted that the state already allowed broad public participation in administrative proceedings and the federal law did not require an expansion of this process. "In this light, we again find the principle of Testa v. Katt, supra, controlling: the State is asked only to make its administrative tribunals available for the vindication of federal as well as state-created rights." 456 U.S. at 768.
Testa v. Katt is the third case cited by the Seventh Circuit. A federal price control law in World War II allowed a buyer of goods over the ceiling price to sue for treble damages in any court of competent jurisdiction. The Rhode Island Supreme Court regarded the law as penal and refused to enforce it. The U.S. Supreme Court noted that if the same claim arose under Rhode Island law, the state courts would enforce it. Since the state courts have jurisdiction adequate and appropriate under established local law to adjudicate the action, they are not free to refuse enforcement of the federal claim.
Even if Erickson is a correct statement of the law after Alden, other problems are presented if a state court is unsympathetic to enforcement of federal laws in state courts. After Erickson was decided, an Illinois appellate court refused to allow suit against the state for violation of federal discrimination laws (race, Title VII and age, Age Discrimination in Employment Act). Cooper v. Illinois State University, 772 N.E. 2d 396 (Ill. App., 4th Dist. 2002). Plaintiff exhausted his administrative remedies through the EEOC under the federal acts and then sued the state in state court alleging violations of the federal laws. The trial court dismissed based on state sovereign immunity and the appellate court affirmed. Illinois has a statute that states: "Except as otherwise provided by law, no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in this Act." The statute prohibits discrimination by the state but requires exhaustion of state administrative remedies before any suit can be brought. The Appellate Court held that the state courts do not have jurisdiction to hear the claims because the state administrative process was not followed. Commenting on Erickson, the court described the language quoted above as "a regrettable choice of words," suggesting the Seventh Circuit should have referred to remedies under Illinois law rather than Illinois courts. The court stated that decisions of the Seventh Circuit are not binding on Illinois courts and the Seventh Circuit cannot confer jurisdiction on state courts not provided for under state law.
The decision leaves open an interesting question. If Illinois had a cooperative agreement with the EEOC to investigate discrimination claims and plaintiff had filed with the state agency, would the state court then have jurisdiction over the federal claims and could it refuse to hear those claims? Would it make any difference if plaintiff filed complaints with the state agency under both federal and state law?