Marcie a Redgrave v. Doug Ducey ( 2021 )


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  •                                   IN THE
    SUPREME COURT OF THE STATE OF ARIZONA
    MARCIE A. REDGRAVE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
    SIMILARLY SITUATED,
    Plaintiff/Appellant,
    v.
    DOUG DUCEY, GOVERNOR; THOMAS J. BETLACH, IN HIS OFFICIAL CAPACITY
    AS DIRECTOR OF THE ARIZONA HEALTH CARE COST CONTAINMENT SYSTEM;
    ARIZONA DEPARTMENT OF ECONOMIC SECURITY; ARIZONA DIVISION OF
    DEVELOPMENTAL DISABILITIES,
    Defendants/Appellees.
    No. CV-20-0082-CQ
    Filed August 19, 2021
    United States District Court for the District of Arizona
    No. D.C. 2:18-cv-01247-DLR
    Certified Question from the
    United States Court of Appeals for the Ninth Circuit
    
    953 F.3d 1123
     (2020)
    QUESTION ANSWERED
    COUNSEL:
    Nicholas J. Enoch, Stanley Lubin, Kaitlyn A. Redfield-Ortiz (argued), Lubin
    & Enoch, P.C., Phoenix, Attorneys for Marcie A. Redgrave
    J. Mark Ogden, Littler Mendelson, P.C., Phoenix, Attorneys for Doug
    Ducey; and Mark Brnovich, Arizona Attorney General, Drew C. Ensign,
    Deputy Solicitor General, (argued), Robert J. Makar, Assistant Attorney
    General, Phoenix, Attorneys for Thomas J. Betlach, Arizona Department of
    Economic Security, and Arizona Division of Developmental Disabilities
    David L. Abney, Ahwatukee Legal Office, P.C., Phoenix; Stanley G.
    Feldman, Miller, Pitt, Feldman & McAnally, P.C., Tucson; and Daniel J.
    Adelman, Arizona Center for Law in the Public Interest, Phoenix, Attorneys
    MARCIE A. REDGRAVE V. DOUG DUCEY ET AL.
    Opinion of the Court
    for Amici Curiae Arizona Center for Law in the Public Interest and Arizona
    Association for Justice/Arizona Trial Lawyers Association
    Edmundo P. Robaina, Robaina & Kresin PLLC, Phoenix; and Ty D. Frankel,
    Bonnett, Fairborn, Friedman & Balint, P.C., Phoenix, Attorneys for Amicus
    Curiae Kimberly Spitler
    CHIEF JUSTICE BRUTINEL authored the opinion of the Court, in which
    VICE CHIEF JUSTICE TIMMER, and JUSTICES BOLICK, LOPEZ, BEENE,
    and MONTGOMERY joined. ∗
    CHIEF JUSTICE BRUTINEL, opinion of the Court:
    ¶1             The United States Court of Appeals for the Ninth Circuit
    certified the following question to this Court: Has Arizona consented to
    damages liability for a state agency’s violation of the minimum wage or
    overtime provisions of the federal Fair Labor Standards Act (“FLSA”), 
    29 U.S.C. §§ 206
    –207?
    ¶2           The Arizona Constitution gives the legislature the authority
    to waive Arizona’s sovereign immunity, and the legislature has not
    unequivocally consented to federal damages liability. Therefore, we hold
    that Arizona has not consented to such liability under the FLSA.
    I.   BACKGROUND
    ¶3            Marcie Redgrave claims the State 1 violated the FLSA by
    failing to pay minimum wage and overtime compensation to state-
    employed in-home caretakers like herself, who provide around-the-clock
    care to beneficiaries of the Arizona Long-Term Care System. In February
    2018, Redgrave filed a putative class action complaint to that effect in
    Maricopa County Superior Court. The State removed the case to federal
    court, asserted its sovereign immunity, and moved to dismiss. After
    rejecting Redgrave’s contentions that (1) the State waived its sovereign
    ∗  Although Justice Andrew W. Gould (Ret.) participated in the oral
    argument in this case, he retired before issuance of this opinion and did not
    take part in its drafting.
    1 For simplicity, we refer to the four Defendants/Appellees collectively as
    “the State.”
    2
    MARCIE A. REDGRAVE V. DOUG DUCEY ET AL.
    Opinion of the Court
    immunity by removing the case to federal court and (2) Arizona has waived
    its sovereign immunity as a matter of law, the district court dismissed
    Redgrave’s claims. Redgrave appealed.
    ¶4            Finding no controlling Arizona precedent addressing the
    State’s assertion of sovereign immunity to damages liability under the
    FLSA, the Ninth Circuit certified the above-stated question to this Court.
    Redgrave v. Ducey, 
    953 F.3d 1123
    , 1127–28 (9th Cir. 2020) (mem. decision). 2
    ¶5            We agreed to answer the question, and we have jurisdiction
    under article 6, section 5(6) of the Arizona Constitution, A.R.S. § 12-1861,
    and Arizona Supreme Court Rule 27.
    II.    DISCUSSION
    ¶6             The Arizona Constitution provides that “[t]he legislature
    shall direct by law in what manner and in what courts suits may be brought
    against the state.” Ariz. Const. art. 4, pt. 2, § 18. In so doing, it grants to the
    legislature “express authority . . . to define those instances in which public
    entities and employees are entitled to immunity.” Clouse ex rel. Clouse v.
    State, 
    199 Ariz. 196
    , 203 ¶ 25 (2001). The issue here is whether the
    legislature, in exercising this power, has consented to damages liability
    under the FLSA. It has not.
    A. Standard for Sovereign Immunity Waivers
    ¶7           Before assessing whether the State has consented to be sued,
    we first must address the more difficult question of what is required to
    waive sovereign immunity in Arizona.
    ¶8            “Dual sovereignty is a defining feature of our Nation’s
    constitutional blueprint.” Sossamon v. Texas, 
    563 U.S. 277
    , 283 (2011).
    Sovereign immunity bolsters this arrangement by restricting federal
    jurisdiction over suits against nonconsenting states. 
    Id. at 284
    . “A State . . .
    may choose to waive its immunity in federal court at its pleasure.” 
    Id.
     Yet
    such immunity is not confined to cases filed in federal court. The Supreme
    Court has recognized sovereign immunity in state courts as well: “the
    2 The Ninth Circuit declined to address Redgrave’s waiver-by-removal
    argument before certifying the instant question to this Court. Redgrave, 953
    F.3d at 1125.
    3
    MARCIE A. REDGRAVE V. DOUG DUCEY ET AL.
    Opinion of the Court
    powers delegated to Congress under Article I of the United States
    Constitution do not include the power to subject nonconsenting States to
    private suits for damages in state courts.” Alden v. Maine, 
    527 U.S. 706
    , 712
    (1999). Absent its consent, then, a state generally remains constitutionally
    immune from liability for federally created causes of action in its own
    courts as well. 3 Alden, 
    527 U.S. at 754
    ; accord Coleman v. Court of Appeals of
    Md., 
    566 U.S. 30
    , 35 (2012) (“A foundational premise of the federal system
    is that States, as sovereigns, are immune from suits for damages, save as
    they elect to waive that defense.”).
    ¶9            Each of the parties here advances its own theory of what is
    required to evidence consent to be sued. In the State’s view, we should
    employ the same standard applied by federal courts, upon whom the
    Supreme Court has imposed a “stringent” requirement that consent be
    “‘unequivocally expressed’ in the text of the relevant statute”—in this case,
    the Actions Against Public Entities and Public Employees Act (the “Act”),
    A.R.S. §§ 12-820 to 12-826. See Sossamon, 
    563 U.S. at 283
     (quoting Pennhurst
    State Sch. & Hosp. v. Halderman, 
    465 U.S. 89
    , 99 (1984)). This approach
    demands more than a state’s consent to suit in its own courts, or even “in
    any court of competent jurisdiction.” Coll. Sav. Bank v. Fla. Prepaid
    Postsecondary Educ. Expense Bd., 
    527 U.S. 666
    , 676 (1999). Any waiver must
    be explicit, resolving all ambiguity in favor of preserving immunity.
    Sossamon, 
    563 U.S. at 285
    .
    ¶10           Redgrave favors a less exacting approach. 4 Echoing the Ninth
    Circuit’s Certification Order, she contends that we “flipped the traditional
    rule,” see Redgrave, 953 F.3d at 1127, by holding that, when construing the
    3 In limited instances, Congress alternatively may abrogate state immunity
    using its enforcement power under the Fourteenth Amendment. See U.S.
    Const. amend. XIV, § 5; Alden, 
    527 U.S. at 756
    . Abrogation is not at issue
    here.
    4 Redgrave passingly suggests that the Supreme Court’s unequivocal
    expression standard only applies to waivers of the federal government’s
    sovereign immunity. Not so; although it does apply to federal immunity
    waivers, Lane v. Pena, 
    518 U.S. 187
    , 192 (1996) (“A waiver of the Federal
    Government’s sovereign immunity must be unequivocally expressed in
    statutory text and will not be implied.” (citations omitted)), states generally
    enjoy the same presumption, Sossamon, 
    563 U.S. at
    284–85 (applying
    identical rule to state immunity waiver).
    4
    MARCIE A. REDGRAVE V. DOUG DUCEY ET AL.
    Opinion of the Court
    Act’s immunity provisions, “governmental liability is the rule in Arizona
    and immunity is the exception,” see Doe ex rel. Doe v. State, 
    200 Ariz. 174
    , 176
    ¶ 4 (2001). We disagree.
    ¶11            Context gainsays Redgrave’s view that the Act’s rule favoring
    government liability extends to claims for federal damages. The Arizona
    Constitution expressly assigns to the legislature the role of setting the
    parameters of state sovereign immunity. See Ariz. Const. art. 4, pt. 2, § 18;
    Clouse, 
    199 Ariz. at
    203 ¶ 25. Our presumption of liability respects this
    authority. In fact, it mirrors the Act’s statement of purpose and intent,
    which declares it “the public policy of this state that public entities are liable
    for acts and omissions of employees in accordance with the statutes and
    common law of this state” and instructs courts to construe the Act
    accordingly. 1984 Ariz. Sess. Laws, ch. 285, § 1(A) (2d Reg. Sess.). But that
    same statement prevents us from applying this presumption beyond claims
    arising from “the statutes and common law of this state.” Cf. Fleming v.
    State Dep’t of Pub. Safety, 
    237 Ariz. 414
    , 418 ¶¶ 18–19 (2015) (crediting
    legislative statement of purpose and intent for pro-liability presumption);
    Doe, 
    200 Ariz. at
    175–76 ¶ 4 (same); Fidelity Sec. Life Ins. Co. v. State, 
    191 Ariz. 222
    , 224–25 ¶ 7 (1998) (same). To hold otherwise would diminish the
    legislature’s constitutional role in administering Arizona’s sovereign
    immunity while inadvertently aggrandizing federal power over state
    affairs. See Welch v. Tex. Dep’t of Highways & Pub. Trans., 
    483 U.S. 468
    , 473–
    74 (1987) (“[A] State does not waive Eleventh Amendment immunity in
    federal courts merely by waiving sovereign immunity in its own courts.”).
    We decline to reach such a result absent clear consent.
    ¶12             Our pre-Act abolition of governmental immunity in Stone v.
    Arizona Highway Commission does not require us to accept Redgrave’s
    reading of the Act. See 
    93 Ariz. 384
    , 392 (1963). In fact, our holding in Stone
    suggests any presumption favoring governmental liability originally
    extended only to common law tort claims. See 
    id. at 387
     (“After a thorough
    re-examination of the rule of governmental immunity from tort liability, we
    now hold that it must be discarded as a rule of law in Arizona and all prior
    decisions to the contrary are hereby overruled.” (emphasis added)); see also
    
    id.
     at 388 n.1 (“The whole doctrine of governmental immunity from liability
    for tort rests upon a rotten foundation.” (quoting Annotation, Rule of
    municipal immunity from liability for acts in performance of governmental
    functions as applicable in case of personal injury or death as result of a nuisance,
    
    75 A.L.R. 1196
     (1931)) (emphasis added)). And we have eschewed
    5
    MARCIE A. REDGRAVE V. DOUG DUCEY ET AL.
    Opinion of the Court
    subsequent invitations to read Stone more expansively. See Clouse, 
    199 Ariz. at
    202 ¶ 20 (“Although our decisions since Stone follow a somewhat
    circuitous route, we have never suggested that Stone prohibits all forms of
    governmental immunity. To the contrary, we consistently have recognized
    the power of the legislature to retain or confer immunity where
    appropriate.”); cf. Backus v. State, 
    220 Ariz. 101
    , 104 ¶ 9 (describing Act as
    codification of Stone). We do so again today.
    ¶13           No Arizona court has suggested that either the Act or Stone
    made the State presumptively liable for federal damages. Instead, we have
    regularly applied the Act only to state-law claims. See, e.g., Fleming, 237
    Ariz. at 418–19 ¶¶ 18–20 (presumption applies to wrongful death claim);
    County of La Paz v. Yakima Compost Co., Inc., 
    224 Ariz. 590
    , 602–03 ¶¶ 33–34
    (App. 2010) (breach of contract, covenant of good faith and fair dealing);
    Greenwood v. State, 
    217 Ariz. 438
    , 442–45 ¶¶ 14–22 (App. 2008) (negligence);
    Schabel v. Deer Valley Unified Sch. Dist. No. 97, 
    186 Ariz. 161
    , 163–64 (App.
    1996) (same); Goss v. City of Globe, 
    180 Ariz. 229
    , 232–33 (App. 1994) (same).
    ¶14            Federal courts have also recognized this distinction. See
    Ramirez v. Ariz. State Treasurer, No. CV-17-02024-PHX-SPL, 
    2018 WL 6348411
    , at *1 (D. Ariz. June 20, 2018) (“Because the Arizona Legislature has
    not passed any law explicitly consenting to private claims under the FLSA,
    the Court finds no statutory waiver of immunity.”); Wennihan v. AHCCCS,
    
    515 F. Supp. 2d 1040
    , 1049 (D. Ariz. 2005) (no evidence of Arizona waiver
    of constitutional immunity to federal liability); see also Ronwin v. Shapiro, 
    657 F.2d 1071
    , 1074 (9th Cir. 1981) (“[T]here is no indication in the [Stone]
    opinion that Arizona intended to consent to anything more than suit in its
    own courts.”); Strojnik v. State Bar of Ariz., 
    446 F. Supp. 3d 566
    , 573 (D. Ariz.
    2020) (“Stone . . . does not address suits against Arizona in federal court, but
    rather addresses suits against Arizona in state court.”); King v. Arizona, No.
    CV09–8062–PHX–DGC, 
    2010 WL 3219139
    , at *2 (D. Ariz. Aug. 13, 2010)
    (“[Stone] does not address suits against a state in federal court, but rather
    addresses suits against the State of Arizona in state court.”).
    ¶15            This is also the case in other states, whose legislatures, like
    ours, responded to the judicial abolition of common law immunity with
    some statutory reassertion of that protection. See Clouse, 
    199 Ariz. at
    199
    ¶ 14 (“Although most states have waived their sovereign immunity, either
    through judicial abrogation or legislative waiver, all fifty states have
    enacted some form of a ‘Tort Claims Act’ to define, and sometimes to re-
    establish, the parameters of governmental liability.”). Moreover, of those
    6
    MARCIE A. REDGRAVE V. DOUG DUCEY ET AL.
    Opinion of the Court
    states whose constitutions include immunity clauses, most have held that
    such a provision “‘constitutionalizes’ the doctrine of sovereign immunity
    and confers upon the legislature the exclusive authority to waive sovereign
    immunity and that, absent legislative action, suits against the state cannot
    proceed.” 
    Id.
     at 200 ¶ 16; see also 
    id.
     at 200 ¶ 16 n.8 (collecting cases).
    ¶16            We think New Mexico’s approach is persuasive. After its
    supreme court abolished common law sovereign immunity, see Hicks v.
    State, 
    544 P.2d 1153
    , 1155–57 ¶¶ 7–13 (N.M. 1975), New Mexico’s legislature
    responded by passing statutes reasserting state immunity from certain
    contract actions, see N.M. Stat. § 37-1-23, and from tort liability, see N.M.
    Stat. §§ 41-4-1 to 41-4-27. When later asked to extend Hicks to FLSA claims
    because the legislature had not included such federal claims in its statutory
    response, that court declined. It instead held that Hicks’s abolition of
    common law sovereign immunity had left the state’s presumptive
    immunity to federal liability intact. Cockrell v. Bd. of Regents of N.M. State
    Univ., 
    45 P.3d 876
    , 882–84 ¶¶ 10–15 (N.M. 2002). Thus, New Mexico
    retained its immunity to federal damages liability in its own courts. 
    Id.
     at
    884 ¶ 15. And given its constitutional stature, that protection’s waiver
    required “a clear and unambiguous expression of legislative intent to
    consent to suit for FLSA claims.” 
    Id.
     at 886 ¶ 20.
    ¶17           Redgrave’s reliance on Byrd v. Oregon State Police, 
    238 P.3d 404
    (Or. Ct. App. 2010), fails to rebut this view. There the Oregon Court of
    Appeals held that the state had waived its immunity to FLSA claims
    because they are “torts” as the legislature defined the term in the Oregon
    Tort Claims Act (“OTCA”). Id. at 405. The court then rejected the argument
    that Alden’s “stringent” waiver standard applied when asking whether a
    state has consented to federal liability in its own courts. In its view,
    Alden did not make the Eleventh Amendment standard for
    waiver of state sovereign immunity applicable to the question
    whether a state has waived its sovereign immunity against
    being sued in its own courts. Whether a state has waived its
    sovereign immunity against being sued in federal court, that
    is, whether it has waived its protection under the Eleventh
    Amendment against such actions, presents a federal-law
    question. Whether a state has waived its sovereign immunity
    against being sued in its own courts presents a state-law
    question.
    7
    MARCIE A. REDGRAVE V. DOUG DUCEY ET AL.
    Opinion of the Court
    Id. at 406. Two considerations temper Byrd’s instructive value.
    ¶18           First, whether waiver has in fact occurred is undeniably a
    state law question. State courts remain the ultimate interpreters of the laws
    by which such waivers are generally made. See Herb v. Pitcairn, 
    324 U.S. 117
    , 125–26 (1945) (“This Court from the time of its foundation has adhered
    to the principle that it will not review judgments of state courts that rest on
    adequate and independent state grounds. The reason is so obvious that it
    has rarely upon thought to warrant statement.” (citations omitted)). What
    standard governs the waiver of a federal constitutional right, however, is
    not. See Boykin v. Alabama, 
    395 U.S. 238
    , 243 (1969) (“The question of an
    effective waiver of a federal constitutional right in a proceeding is of course
    governed by federal standards.”). Byrd’s venue-based conception of the
    appropriate waiver standard would reduce sovereign immunity to
    something short of a constitutional right and, at least in certain instances,
    permit the federal government to “wield greater power in the state courts
    than in its own judicial instrumentalities.” Alden, 527 U.S. at 752. It would
    also deny states the “reciprocal privilege” of retaining immunity in both
    federal and state tribunals. Id. at 749–50; accord Hess v. Port Auth. Trans-
    Hudson Corp., 
    513 U.S. 30
    , 48 (1994) (“[T]he vulnerability of the State’s purse
    [is] the most salient factor in Eleventh Amendment determinations.”).
    Meanwhile, the proliferation of statutes waiving or limiting states’
    sovereign immunity “only confirms the prevalence of the traditional
    understanding that a State could not be sued in the absence of an express
    waiver.” See Alden, 
    527 U.S. at 724
    .
    ¶19            Second, Byrd’s refusal to apply the federal constitutional
    waiver standard is dicta. The OTCA specifies that “every public body is
    subject to action or suit for its torts,” 
    Or. Rev. Stat. § 30.265
    (1), constituting
    an express and unequivocal waiver of immunity for torts. And the court
    had held previously that the Oregon legislature intended that FLSA claims
    be classified as “torts.” See Butterfield v. State, 
    987 P.2d 569
    , 572–73 (Or. Ct.
    App. 1999). There was little need, then, to address the “Eleventh
    Amendment standard for waiver of state sovereign immunity,” see Byrd,
    238 P.3d at 406, which, by all appearances, had been satisfied already. 5
    5 Redgrave’s reliance on Hartman v. Regents of University of Colorado faces a
    similar limitation, see 
    22 P.3d 524
    , 529 (Colo. App. 2000) (FLSA claim not a
    tort action and therefore outside statute granting immunity to state entities
    8
    MARCIE A. REDGRAVE V. DOUG DUCEY ET AL.
    Opinion of the Court
    ¶20            Our constitution expressly assigns state liability matters,
    including the waiver of sovereign immunity, to the legislature, see Ariz.
    Const. art. 4, pt. 2, § 18, which has expressly allowed state liability under
    “the statutes and common law of this state,” 1984 Ariz. Sess. Laws, ch. 285,
    § 1(A). Arizona courts have observed this limitation; federal courts have
    not attempted to expand it; and similarly situated state courts have resisted
    waiver absent some express statutory provision. We choose to exercise the
    same restraint here. See Cockrell, 45 P.3d at 883 ¶ 13. We accordingly hold
    that, for Arizona to be liable for damages under the FLSA, legislative
    consent must be “expressly and unequivocally stated in the text of the
    relevant statute.” See Sossamon, 
    563 U.S. at 290
    .
    B. Existence of Waiver
    ¶21           This standard is fatal to Redgrave’s waiver argument. 6 A
    statutory waiver of Arizona’s immunity to federal damages liability may
    only be found “by the most express language or by such overwhelming
    implications from the text as [will] leave no room for any other reasonable
    construction.” See Coll. Sav. Bank, 
    527 U.S. at 678
     (quoting Edelman v. Jordan,
    
    415 U.S. 651
    , 673 (1974)). The Act contains no such language.
    ¶22           “Our goal in interpreting statutes is to give effect to the intent
    of the legislature.” Sell v. Gama, 
    231 Ariz. 323
    , 327 ¶ 16 (2013) (quoting
    Estate of Braden ex rel. Gabaldon v. State, 
    228 Ariz. 323
    , 325 ¶ 8 (2011)).
    Typically, that process begins and ends with the statutory text. 
    Id.
    “Statutory terms, however, must be considered in context.” Estate of Braden,
    228 Ariz. at 325 ¶ 8. Such context may include a contemporaneous
    preamble or statement of purpose and intent, which we will consider even
    where the text is not ambiguous. See Fleming, 237 Ariz. at 418 ¶¶ 18–19
    (construing Act in accordance with statement of purpose and intent); Doe,
    for tort and potential tort claims), as does her reference to Board of Education
    of Baltimore County v. Zimmer-Rubert, see 
    973 A.2d 233
    , 242–43 (Md. 2009)
    (statutory waiver of immunity “to any claim of $100,000 or less”
    unambiguously encompassed all state and federal claims within that
    monetary limit).
    6 At oral argument, Redgrave’s counsel conceded that the Arizona
    legislature has not explicitly consented to damages liability under the
    FLSA. Nevertheless, in the interest of providing a complete answer to the
    question certified by the Ninth Circuit, this opinion addresses the issue in
    full.
    9
    MARCIE A. REDGRAVE V. DOUG DUCEY ET AL.
    Opinion of the Court
    
    200 Ariz. at
    175–76 ¶ 4 (same); Fidelity, 
    191 Ariz. at
    224–25 ¶ 7 (same). If the
    two conflict, however, the text must prevail. And where ambiguity does
    arise, we consult “secondary interpretation methods, such as the statute’s
    subject matter, historical background, effect and consequences, and spirit
    and purpose.” Rosas v. Ariz. Dep’t of Econ. Sec., 
    249 Ariz. 26
    , 28 ¶ 13 (2020).
    ¶23            The Act’s statement of purpose and intent bears repeating. In
    adopting the Act, the legislature declared it “the public policy of this state
    that public entities are liable for the acts or omissions of public employees
    in accordance with the statutes and common law of this state.” 1984 Ariz. Sess.
    Laws, ch. 285, § 1(A) (emphasis added). It further instructed that “[a]ll of
    the provisions of this act should be construed with a view to carry out the
    above legislative purpose.” Id. This duly enacted legislative statement gave
    us the Act’s presumption of liability. See Doe, 
    200 Ariz. at
    176 ¶ 4
    (construing Act’s immunity provisions narrowly). It follows that the same
    statement’s explicit reference to sources of state law limits the scope of that
    presumption. The legislature just as easily could have declared a public
    policy of state liability in accordance with state and federal law, imploring
    the Act’s interpreters to construe it accordingly. But it did not.
    ¶24            The legislature’s emphasis of state liability under state law in
    turn moots the parties’ and amici’s concern with whether the FLSA sounds
    in tort or in contract. Even assuming the Act encompasses both, the
    legislature’s instruction that it be construed in favor of liability “in
    accordance with the statutes and common law of this state” stops short of
    permitting federal liability. See 1984 Ariz. Sess. Laws, ch. 285, § 1(A). The
    New Mexico example is instructive. Before Cockrell deemed constitutional
    immunity beyond the scope of judicial and legislative efforts to limit
    common law immunity, the court had held that its abolition of common law
    immunity in Hicks had done so “in all its ramifications, whether in tort or
    contract or otherwise.” Torrance Cnty. Mental Health Program v. N.M. Health
    & Env’t Dep’t, 
    830 P.2d 145
    , 149 ¶ 14 (N.M. 1992). Yet it had no trouble
    distinguishing New Mexico’s presumptive waiver of immunity under state
    law from the state’s continued immunity to federal damages liability. See
    Cockrell, 45 P.3d at 884–87 ¶¶ 16–24. Nor do we.
    ¶25              Redgrave’s reading of the Act’s absolute immunity provision
    meets a similar fate. Although it limits such immunity to “acts or omissions
    . . . constituting . . . [t]he exercise of a judicial or legislative function [or t]he
    exercise of an administrative function involving the determination of
    fundamental governmental policy,” A.R.S. § 12-820.01(A)(1)–(2), the Act
    10
    MARCIE A. REDGRAVE V. DOUG DUCEY ET AL.
    Opinion of the Court
    commands that this provision be read in accordance with the legislature’s
    express purpose of making state entities liable for violations of state law.
    An absence of waiver here does not depend upon a finding that the state’s
    alleged FLSA violations fall into one of these two categories. See Sossamon,
    
    563 U.S. at 284
     (“Waiver may not be implied.”).
    ¶26            We likewise reject amici’s suggestion that the legislature
    implicitly waived immunity by including a couple of references to federal
    law in Arizona’s own wage and hour law. The statute’s use of federal
    overtime requirements in defining the state’s own overtime rates for public
    employees, see A.R.S. § 23-391(A)(1) (time and a half “if overtime
    compensation is mandated by federal law”), (2) (regular compensation “[i]f
    federal law does not mandate overtime compensation”), hardly makes
    damages liability under the FLSA inevitable, see Coll. Sav. Bank, 
    527 U.S. at 678
    . Nor did the Department of Administration, by incorporating FLSA
    regulations into its own, see Ariz. Admin. Code § R2-5A-404, waive the
    state’s immunity on the legislature’s behalf. At most, such regulations
    reflect the state’s efforts to meet its FLSA obligations despite its continued
    immunity to damages liability. See Alden, 
    527 U.S. at
    754–55 (suggesting
    states’ “good faith” gives “important assurance” states will still obey “valid
    federal law”). Even if implicit waivers were enough, then, none exist here.
    ¶27           All told, the legislature has not consented to damages liability
    under the FLSA. Where a claim is based upon “the statutes and common
    law of this state,” the Act’s command is clear: absent some other form of
    immunity—for instance, qualified immunity under § 12-820.02—the state is
    presumptively amenable to suit. See 1984 Ariz. Sess. Laws, ch. 285, § 1(A);
    Coll Sav. Bank, 
    527 U.S. at 678
    . The same is not true of federal damages
    claims. No matter how “restrained and narrow” our construction of the
    Act’s immunity provisions, such claims lie beyond the legislature’s stated
    scope of consent. See Fidelity, 
    191 Ariz. at
    225 ¶ 7.
    III.   CONCLUSION
    ¶28            We answer the Ninth Circuit’s certified question as follows:
    Because the legislature has neither expressly nor unequivocally implied its
    consent to federal damages liability, Arizona has not consented to damages
    liability for a state agency’s violation of the FLSA’s minimum wage or
    overtime provisions.
    11