BOARD OF ED. OF BALTIMORE CTY. v. Zimmer-Rubert

GREENE, Judge. Md.Code (1974, 2006 Repl.Vol.), § 5-518(c) of the Courts and Judicial Proceedings Article provides that “[a] county board of education may not raise the defense of sovereign immunity to any claim of $100,000 or less.” This case, brought pursuant to the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., for the amount of $100,000, requires us to discern the extent to which § 5-518(c) waives the governmental immunity of the Baltimore County Board of Education (“Board”). The issue is essentially one of statutory interpretation, and we conclude that § 5-518(c) waives the Board’s governmental immunity, meaning its general sovereign immunity and the immunity guaranteed by the Eleventh Amendment to the United States Constitution, 1 for all claims in the amount of $100,000 or less. Therefore, we shall affirm the judgment of the Court of Special Appeals. /.

We shall adopt the facts as set forth in the reported opinion of the Court of Special Appeals. See Zimmer-Rubert v. Board of Ed., 179 Md.App. 589 , 947 A.2d 135 (2008). The intermediate appellate court recited the facts as follows: ²⁰⁴ Born on January 16, 1949, [Ms. Zimmer-Rubert] is an experienced educator qualified to teach English, Spanish, German, and French. In March of 2004, [she] filed an application to teach foreign language in [the Baltimore County] high schools.

Unsuccessful in her quest to secure a teaching position and, upon learning that young teachers were hired to fill vacant positions for which she was qualified, [Zimmer-Rubert] filed a Charge of Discrimination with the Equal Employment Opportunity Commission. On March 17, 2006, [Zimmer-Rubert] was granted a Right to Sue letter. Within ninety days, [Zimmer-Rubert] filed a Complaint in the [Circuit [C]ourt[ 2 ] against [the Board], alleging age discrimination and “demanding judgment for compensatory damages in the amount of $100,000, attorney fees, pursuant to 29 U.S.C. § 626 (b), interest and the costs of the action.” [The Board] subsequently moved to dismiss [Zimmer-Rubert]’s suit [contending that it was entitled to the immunity guaranteed by the Eleventh Amendment to the United States Constitution]. A hearing on [the Board]’s motion was held on May 25, 2007.

In a ruling from the bench on that same day, the trial court granted [the Board]’s motion, finding that [Zimmer-Rubert]’s ADEA claim was barred by [the Board]’s Eleventh Amendment immunity. Explaining her decision, the trial judge opined that, “on further reflection in looking at C.J. § 5-518, as well as Alden v. Maine, 527 U.S. 706 , 119 S.Ct. 2240 , 144 L.Ed.2d 636 (1999), that [sic] the 11th Amendment immunity must be specifically waived, and it’s not.” Zimmer-Rubert, 179 Md.App. at 592-93 , 947 A.2d at 137 . The Court of Special Appeals reversed the judgment of the Circuit Court. Zimmer-Rubert, 179 Md.App. at 612 , 947 A.2d ²⁰⁵ at 149.

In so doing, the intermediate appellate court first reasoned that the Board is an “arm of the state” entitled to Eleventh Amendment immunity. Zimmer-Rubert, 179 Md. App. at 603 , 947 A.2d at 143 . The court held ultimately, however, that § 5-518(c) of the Courts and Judicial Proceedings Article waived such immunity as to Zimmer-Rubert’s claim. Zimmer-Rubert, 179 Md.App. at 612 , 947 A.2d at 149 .

According to the court, “[ujnder the settled approach to statutory interpretation, the words ‘any claim’ [in § 5-518(c) ] cannot reasonably be read to exclude certain categories of claims.” Id. The Board petitioned this Court for a writ of certiorari, and we granted the Board’s petition. The dispositive question before us is “[wjhether the State of Maryland, pursuant to Section 4-105 of the Education Article and Section 5-518(c) of the Courts and Judicial Proceedings Article, enacted a valid waiver of Eleventh Amendment immunity?” 3 II. In this case, there is no contention that the Board is not a State agency entitled to governmental immunity.

See Regents ²⁰⁶ of the Univ. of Cal. v. Doe, 519 U.S. 425, 429-80 , 117 S.Ct. 900, 903-04 , 137 L.Ed.2d 55, 60-61 (1997) (holding that only the states themselves, or a state agency or instrumentality that functions as an “arm of the state,” may invoke sovereign immunity or the immunity afforded by the Eleventh Amendment (internal quotations omitted)); Condon v. State, 332 Md. 481, 492 , 632 A.2d 753, 758 (1993) (“The doctrine [of sovereign immunity] is applicable to the State’s agencies and instrumentalities, unless the legislature has explicitly or by implication waived governmental immunity.”). We have long considered county school boards to be State agencies rather than independent, local bodies. See, e.g., State v. Board of Education, 346 Md. 633 , 635 n. 1, 697 A.2d 1334 , 1335 n. 1 (1997) (“The various county boards of education are State agencies.”); Board v. Secretary of Personnel, 317 Md. 34 , 44 n. 5, 562 A.2d 700 , 705 n. 5 (1989) (“It is settled that county boards of education are State agencies.”); Bd. of Educ. v. P.G. Co. Educators’ Ass’n, 809 Md. 85 , 95 n. 3, 522 A.2d 931 , 936 n. 3 (1987) (“County boards of education are, of course, state agencies and not agencies of the county governments.”); Montgomery Co. Ed. Ass’n v. Bd. of Educ., 311 Md. 303, 317 , 534 A.2d 980, 987 (1987) (recognizing the local boards as State agencies); McCarthy v. Bd. of Education of A.A. Co., 280 Md. 634, 639-50 , 374 A.2d 1135, 1138-13 (1977) (examining the history of Maryland public education from colonial times, through the Constitutions of 1864 and 1867 and the concomitant statutes, to conclude that the Board of Education of Anne Arundel County is a State agency); Bd. of Ed. v. Montgomery County, 237 Md. 191, 197 , 205 A.2d 202, 205 (1964) (noting that a local school board is neither a branch of the county government nor an agency under its control); see also Norville v. Board of Education, 160 Md.App. 12, 35-62 , 862 A.2d 477, 489-507 (2004) (discussing, and ultimately holding, that the Anne Arundel Board of Education is an arm of the State for purposes of Eleventh Amendment immunity), vacated on other grounds, 390 Md. 93 , 887 A.2d 1029 (2005). The question before this Court is, essentially, whether § 5-518(c) of the Courts and Judicial Proceedings Article waives ²⁰⁷ the Board’s Eleventh Amendment immunity as to Zimmer-Rubert’s ADEA suit. 4 As stated, § 5-518(c) of the Courts and Judicial Proceedings Article provides that “[a] county board of education may not raise the defense of sovereign immunity to any claim of $100,000 or less.” The Board contends that § 5-518(c) constitutes a general waiver of sovereign immunity that is insufficient to waive the Board’s Eleventh Amendment immunity.

According to the Board, “states enjoy Eleventh Amendment immunity in their own courts” that can only be waived by explicitly consenting to suit in federal court. (Petr.’s Br. 13, 20). Conversely, Zimmer-Rubert maintains that the Board’s Eleventh Amendment immunity is but a manifestation of its broader sovereign immunity that the General Assembly waived by virtue of § 5~518(c). The Eleventh Amendment reads: “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.” U.S. Const, amend.

XI

Although the Amendment, by its terms, applies only to suits brought against a state by citizens of another state or foreign state in federal court, the United States Supreme Court has “looked to ‘history and experience and the established order of things,’ rather than ‘adhering to the mere letter’ of the Eleventh Amendment, in determining the scope of the States’ constitutional immunity from suit.” Alden v. Maine, 527 U.S. 706, 727 , 119 S.Ct. 2240, 2253 , 144 L.Ed.2d 636, 661 (1999) (quoting Hans v. Louisiana, 134 U.S. 1, 13, 14 , 10 S.Ct. 504, 506 , 33 L.Ed. 842, 847 (1890)). Thus, for example, the Supreme Court has held that the Eleventh Amendment bars suits against states by their own citizens, Hans, 134 U.S. at 11 , 10 S.Ct. at 505 , 33 L.Ed. at 845 , and by Native-American tribes, Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 47 , 116 ²⁰⁸ S.Ct. 1114, 1119, 184 L.Ed.2d 252, 261 (1996). In so holding, the Supreme Court “ha[s] understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty....” Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 779 , 111 S.Ct. 2578, 2581 , 115 L.Ed.2d 686, 694 (1991); see Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 754 , 122 S.Ct. 1864, 1871 , 152 L.Ed.2d 962, 974 (2002) (“[T]he sovereign immunity enjoyed by the States extends beyond the literal text of the Eleventh Amendment.”).

In Alden, 527 U.S. at 735, 754 , 119 S.Ct. at 2257, 2266 , 144 L.Ed.2d at 666, 678 , while recognizing that the Eleventh Amendment served previously to limit only the Article III jurisdiction of the federal courts, the United States Supreme Court pointed out that states have the right to assert the defense of sovereign immunity in state court proceedings. Alden involved a suit by a group of probation officers against their employer, the State of Maine, pursuant to the Fair Labor Standards Act (“FLSA”). The Supreme Court held that Congress lacked authority under its Article I Commerce Clause powers to subject nonconsenting states to private suits in their own courts. Alden, 527 U.S. at 712 , 119 S.Ct. at 2246 , 144 L.Ed.2d at 652 .

The import of Alden extends beyond its specific holding. The case is notable for analyzing the relationship between the broad doctrine of sovereign immunity and the more specific grant of immunity in the Eleventh Amendment. The Supreme Court thus recognized that the doctrine of sovereign immunity predated the ratification of the Eleventh Amendment, which is not an exhaustive expression of the doctrine: The Eleventh Amendment makes explicit reference to the States’ immunity from suits “commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” We have, as a result, sometimes referred to the States’ immuni ²⁰⁹ ty from suit as “Eleventh Amendment immunity.” The phrase is convenient shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh Amendment. Rather, as the Constitution’s 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 (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments. [Sjovereign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself.

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 text of the Amendment alone but by fundamental postulates implicit in the constitutional design. [WJhile the Eleventh Amendment by its terms addresses only “the Judicial power of the United States,” nothing ... suggested the States were not immune from suits in their own courts. Alden, 527 U.S. at 712-713, 728-29, 742 , 119 S.Ct. at 2246-47, 2254, 2260 , 144 L.Ed.2d at 652, 662, 670 (citations omitted). The United States Supreme Court’s decision in Alden also emphasized that “a State may waive its sovereign immunity and consent to suit.” 5 Alden, 527 U.S. at 737 , 119 ²¹⁰ S.Ct. at 2258, 144 L.Ed.2d at 667 . The specific defense of Eleventh Amendment immunity will be waived “where stated ‘by the most express language or by such overwhelming implications from the text as [would] leave no room for any other reasonable construction.’ ” Edelman v. Jordan, 415 U.S. 651, 673 , 94 S.Ct. 1347, 1361 , 39 L.Ed.2d 662, 678 (1974) (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171 , 29 S.Ct. 458, 464 , 53 L.Ed. 742, 751 (1909)).

As the Supreme Court further explained in Atascadero State Hospital v. Scanlon, 473 U.S. 234, 241 , 105 S.Ct. 3142, 3146-47 , 87 L.Ed.2d 171, 179 (1985): Although a State’s general waiver of sovereign immunity may subject it to suit in state court, it is not enough to waive the immunity guaranteed by the Eleventh Amendment. “[A] State’s constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued.” Thus, in order for a state statute or constitutional provision to constitute a waiver of Eleventh Amendment immunity, it must specify the State’s intention to subject itself to suit in federal court. (Citations omitted.) See also Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 307-09 , 110 S.Ct. 1868, 1873-74 , 109 L.Ed.2d 264, 273-75 (1990) (holding that a venue provision allowing for venue to “be laid within a county or judicial district, established by one of said States or by the United States” constituted a waiver of Eleventh Amendment immunity in an associated consent-to-suit provision); Fla. Dep’t of Health and Rehab.

Servs. v. Fla. Nursing Home Ass’n, 450 U.S. 147, 149-50 , 101 S.Ct. 1032, 1034 , 67 L.Ed.2d 132, 135-36 (1981) (per curiam) (holding that a Florida law providing that the Department of Health and Rehabilitative Services “is a ²¹¹ ‘body corporate’ with the capacity to ‘sue and be sued’ ” was a general waiver of sovereign immunity and did not effect a waiver of Eleventh Amendment immunity (citation omitted)). Since Alden , lower courts have indeed recognized a state’s immunity from suit in its own courts and the concomitant right to waive such immunity. See, e.g., Erickson v. Board of Governors of State Colls. & Univs. for N.E. Ill.

Univ., 207 F.3d 945, 952 (7th Cir.2000) (recognizing that states may “implement a blanket rule of sovereign immunity”); Jacoby v. Ark. Dep’t of Educ., 338 Ark. 505 , 995 S.W.2d 353, 354 (1999) (ordering rebriefing on the issue of sovereign immunity in light of Alden); Boise Cascade Corp. v. State ex rel. Or. State Bd. of Forestry, 164 Or.App. 114 , 991 P.2d 563, 566 (1999) (referring to Alden and, notwithstanding the text of the Eleventh Amendment, considering the defendant’s immunity claim); Commonwealth v. Luzik, 259 Va. 198 , 524 S.E.2d 871, 878 (2000) (applying Alden and holding that Virginia did not waive its sovereign immunity from FLSA claims brought in state court); Bachmeier v. Hoffman, 1 P.8d 1236, 1240 (Wyo. 2000) (noting that Alden recognized the proposition that states have sovereign immunity in an action brought in state court and that states may waive such immunity).

In Maryland, this Court has “long applied the doctrine of sovereign immunity in actions against the State.” ARA Health v. Dept. of Public Safety, 344 Md. 85, 91 , 685 A.2d 435, 438 (1996) (citing Katz v. Washington Sub. San. Comm’n, 284 Md. 503, 507 , 397 A.2d 1027, 1030 (1979)). We