Ballot title for proposed sovereign immunity amendment rejected by AG Rutledge

A group trying to push a constitutional amendment that would make clear sovereign immunity rules in Arkansas received a setback Friday (March 9) when Arkansas Attorney General Leslie Rutledge rejected their submitted popular name and ballot title.

The Committee to Restore Arkansans’ Rights, led by Alex Gray, an attorney affiliated with law firm of State Sen. Jeremy Hutchinson and a group pushing for a casino amendment, had requested Rutledge to approve their measure for signature gathering.

The ballot title and language for the proposed amendment simply reads, “An amendment to Article V, Section 20 of the Arkansas Constitution authorizing the General Assembly to waive the State’s sovereign immunity.” The proposed constitutional amendment would in effect give the Arkansas General Assembly the responsibility of writing into law the thresholds outlining sovereign immunity.

“Rejected due to ambiguities in the description of sovereign-immunity ‘waiver,’ and in the language purporting to authorize suits against the State seeking non-monetary relief,” noted the opinion from Rutledge’s office.

The issue of sovereign immunity arose following a decision in The Board of Trustees of the University of Arkansas v. Matthew Andrews. On Jan. 18, the Arkansas Supreme Court noted in a 5-2 ruling that Article 5, Section 20 of the Arkansas Constitution says “[t]he State of Arkansas shall never be made a defendant in any of her courts.”

The court ruled in that overtime pay case that the Legislature cannot pass laws that waive the state’s ability to assert sovereign immunity. The case potentially has far-reaching effects on state policies and may affect another important court case, Lake View School District No. 25 v. Huckabee.

Gov. Asa Hutchinson told Talk Business & Politics Feb. 11 the state should not have a “blanket sovereign immunity across the board, in non-monetary cases particularly.” He said he has asked state agencies not to assert sovereign immunity without his office’s approval. But in her dissent in the Andrews case, Justice Karen Baker wrote that the ruling means that if the Legislature cannot waive the state’s sovereign immunity, then neither can the executive branch.