Alaska Employment Law

Legislature may require injured state ferry workers to bring claims against the State to the Workers Comp Board, not to court.

In 2003, the Alaska legislature amended AS 09.50.250 and thereby a) restored the state’s sovereign immunity from suit by injured state-employed seamen (employees of the Alaska Marine Highway System), and b) referred claims by such employees to the Workers Compensation system.  An injured state employee sought declaratory judgment that that 2003 amendment was invalid on a number of grounds.  The Supreme Court (per Justice Carpeneti) has unanimously affirmed the trial court’s judgment for the State.

Sovereign immunity:  Art. II, § 21 of the Alaska Constitution provides: “The legislature shall establish procedures for suits against the State.”

The Court holds that § 21 doesn’t unconditionally waive the state’s sovereign immunity from suit, and isn’t self-executing.  It also holds that the word “procedures” can carry a substantive meaning (as it does in Title 9, the Alaska Code of Civil Procedure).

The Court applies the “dog that didn’t bark” canon of construction: “the absence of greater discussion [on sovereign immunity] is a meaningful indication that the convention was not charting a radical course in the arena of state sovereignty.”  (Emph. in orig.)

Jones Act: The Jones Act extended FELA to seamen in both the private and public sector.

The Court holds that the Jones Act doesn’t abrogate state sovereign immunity, and that the doctrine of “constructive consent” doesn’t apply against the state, relying, in part, on the fact that Alaska state-employed seamen have access to an administrative remedy.

Right to jury trial:  The Alaska right to a jury trial against the state is a creature of statutory, not constitutional law.

Access to courts:  There’s no constitutional right of “access to courts.”  There is,  rather, a right to “a substantial and effective remedy,” which is satisfied when the state, as here, provides access to an administrative agency rather than to a court.

Equal Protection: The Court rejects the State’s attempt to compare state-employed seamen to stated-employed non-seamen (in which case there would be no differential treatment vis-à-vis WC claims), and instead holds that the proper EP comparison is with private-sector seamen (who may assert Jones Act claims against their employers in court). 

As to the state-employed seamen’s interest, the Court holds that it is an economic one of “limited constitutional importance” because it is “only the right to sue the entity of his choice and potentially the ability to collect a greater amount of money [than is available through the WC Board].”  The state’s interest is the uniformity of procedures regarding claims made by its employees.  The Court then finds a sufficiently close fit between the statute and the state’s objective.

Glover v. State of Alaska, DOTPF, AMHS, Op. No. 6222 (Alaska Jan. 18, 2008).

James Jacobsen of Beard Stacey in Anchorage represented the ferry worker.  Susan Cox of the Juneau AG’s office represented the State.