Mossman v. Donahey ( 1976 )

William B. Brown, J.,

concurring. Despite my natural aversion to the concept of “sovereign immunity” (see, e. g., my dissenting opinion in Thacker v. Bd. of Trustees of Ohio State Univ. [1973], 35 Ohio St. 2d 49, 66), I join with the majority to protest what constitutes, in my opinion, an incredible federal intrusion into internal state affairs.

Appellant presents the somewhat plausible assertion that “employees of state institutions for the mentally retarded [have] the right to sue their employers [the states] to recover unpaid minimum wages.” However, through bureaucratic interpretation of the Fair Labor Standards Act and a ruling of a federal tribunal in Washington, D. C. (Souder v. Brennan [D. D. C., 1973] 367 F. Supp. 808), mental patients, who perform any work of “consequential economic benefit,” have been deemed employees entitled to the minimum wage.

Allegedly, “ [t]he result has been the elimination of patient work, a valuable form of therapy, because the institutions cannot begin to pay the minimum wage and overtime now required. * * * Most institutions simply phased out patient work, leaving former patient workers idle and pathetic victims of bureaucracy.” Lebar, Worker-Patients: Beceiving Therapy or Suffering Peonage? 62 A. B. A. J. 219 (February 1976.)

Before states venture too far down the road to abdicating their traditional functions, the federal Constitution should be consulted. The majority opinion finds the Eleventh Amendment to be a preserver of amicable federal-state relationships. See, also, Durchslag, Welfare Litigation, The Eleventh Amendment and State Sovereignty: Some Deflections on Dandridge v. Williams, 26 Case Western Reserve L. Rev. 60 (Fall 1975). Justice Behnquist, in his splendid dissenting opinion in Fry v. United States (1975), 421 U. S. 542, 549-559, 44 L. Ed. 2d 363, 370-376, has- explored the message of the Tenth Amendment, which reads:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

The situation herein presented is neither a federal program being administered by the states nor a state program greatly dependent upon the federal fisc. Bather, it is a state activity like the administration of prisons, which historicalVy has been an exclusive state function under the reserved powers of the Tenth Amendment. Carter v. McGinnis (W. D. N. Y., 1970), 320 F. Supp. 1092, 1093; Rose v. Haskins (C. A. 6, 1968), 388 F. 2d 91, 93, certiorari denied, 392 U. S. 946; United States v. Jones (S. D. Fla., 1952), 108 F. Supp. 266, 269, remanded on other grounds, 345 U. S. 377, reversed on other grounds, 207 F. 2d 785; Siegel v. Ragen (C. A. 7, 1950), 180 F. 2d 785, 788, certiorari denied, 339 U. S. 990. See, also Dixon v. Steele (W. D. Mo., 1951), 104 F. Supp. 904, 908 (“* * * the right to confine persons for insanity is reserved to the states * * *”); Fahey v. United States (S. D. N. Y., 1957), 153 F. Supp. 878, 884 (“The federal government has no constitutional or inherent power to commit [mentally incompetent persons]”).

The stakes of this action are not only substantial state revenues, but also state policy choices of compelling magnitude. As stated by Justice Rehnquist in his dissenting opinion in Fry, supra, (44 L. Ed. 2d, at 375) “[b]oth [the Tenth and Eleventh] Amendments are simply examples of the understanding of those who drafted and ratified the Constitution that the States were sovereign in many respects, and that although their legislative authority could be superseded by Congress in many areas where Congress was competent to act, Congress was nonetheless not free to deal with a state as if it were just another individual or business enterprise subject to regulation.”

For the foregoing reasons, appellant’s complaint was properly dismissed by the trial court because it fails to state a claim upon which relief can be granted. Civ. R. 12(B) (6).

Celebrezze, J., concurs in the foregoing concurring opinion.