The King Can Do No Wrong! That’s the phrase often used to describe sovereign immunity and is reflective of its origin. In short, sovereign immunity is the rule of law prohibiting, or somehow limiting, a lawsuit against the government.
Just this last week, the Arkansas Supreme Court issued a ruling that drastically altered that rule in our state and will give rise to considerable legal and political debate about its impact and what, if anything, should be done to address it.
Much of the law in the United States was adopted from English common law, and the concept of sovereign immunity is no exception. The notion is the “king” made the laws and therefore the “king” can do no wrong. That means, the king, or the government, cannot be sued. Generally speaking, there are exceptions to the rule such that a government can be made a defendant in certain circumstances. The primary example of such an exception is when the legislative body of the government passes a law stating that it may be subjected to a lawsuit for a violation of the law in question.
Article 5, Section 20 of the Arkansas Constitution states that “the State of Arkansas shall never be made a defendant in any of her courts.” For more than 60 years, the Arkansas Supreme Court held that the Arkansas General Assembly was unable to make exceptions to that prohibition. As a result, statutes allowing for lawsuits against the State were held invalid.
In 1996, the Court changed directions, and held that the State can waive sovereign immunity through statute. Consistent with that ruling, the General Assembly has adopted many laws that permit lawsuits against the state in court. Examples are the Minimum Wage Act, Whistle Blower’s Act and the Freedom of Information Act.
Last Thursday, the Court changed course again. In The Board of Trustees v. Andrews, the Court held that the General Assembly cannot allow for lawsuits against the State. It cited the 60 years of precedent consistent with that holding and, quite simply, pointed out that “shall never be made a defendant in her courts” means just that. As a result, the lawsuit brought by Andrews against Rich Mountain Community College for violation of the Arkansas Minimum Wage Act was dismissed.
Justice Karen Baker, joined by Justice Josephine Hart, disagreed and filed a dissenting opinion. Justice Baker provides several reasons for her belief the majority ruling is wrong, but she also points out some of the implications of the holding. She wonders about the validity of lawsuits involving land-condemnation, the Freedom of Information Act, dependency neglect cases against DHS and illegal-exaction cases. She also cites the monumental Lakeview lawsuit against the State regarding school funding. A case of that nature, she seems to suggest, may no longer be possible in Arkansas.
While simple on its face, the principle of sovereign immunity is extremely complicated and the case law addressing it is extensive. Admittedly, I’m not an expert on the subject and am not holding out this article as a scholarly discussion on the topic. What I do know, as noted by Justice Baker, is that the ruling gives rise to a lot of questions.
For example, is a Lakeview style lawsuit still available? What about claims for violation of the Freedom of Information Act or even appeals from the Administrative Procedure Act? Justice Baker makes note of illegal exaction lawsuits and wonders whether they are still allowed. It should be noted that past lawsuits challenging legislative use of General Improvement Funds have been illegal exaction lawsuits.
One might argue that the ruling is limited to cases seeking to recover money from the State. That is, you would still be able to sue the State and ask the court to make it comply with the law. However, the majority opinion makes no such statement and it even notes that sovereign immunity bars a suit against the state if it “will operate to control the action of the State or subject it to liability.” Between that observation, and the unequivocal nature of “shall never be made a defendant in any of her courts,” that argument is no cinch.
The majority did point out that a person seeking to recover against the State can file a claim with the Arkansas Claims Commission. To be sure, things could get a lot busier at the commission and at the Capitol, where the legislature has ultimate authority over any such awards.
The one thing we do know is that the State can still be sued in federal court for violation of federal law. Beyond that, there are a lot of questions that will have to be sorted out in court and at the Capitol. It’s even possible that there will be a push to amend our Constitution to change the language regarding sovereign immunity.
For sure, you can add this to the stack of hot and important topics in Arkansas politics in the months and years to come.
Editor’s note: Justin Allen is a partner with the Little Rock-based law firm of Wright Lindsey Jennings. He leads the firm’s governmental relations group. Opinions, commentary and other essays posted in this space are wholly the view of the author(s). They may not represent the opinion of the owners of Talk Business & Politics.