ARKANSAS DEPARTMENT OF HUMAN SERVICES and JOHN M. SELIG, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE DEPARTMENT OF HUMAN SERVICES, APPELLANTS
FORT SMITH SCHOOL DISTRICT; GREENWOOD SCHOOL DISTRICT; and VAN BUREN SCHOOL DISTRICT, APPELLEES
APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SECOND DIVISION NO. 60CV-14-718. HONORABLE CHRISTOPHER CHARLES PIAZZA, JUDGE.
J. Mark White, Arkansas Department of Human Services Office of Policy and Legal Services, for appellants.
Thompson and Llewellyn, P.A., by: James M. Llewellyn, Jr., and William P. Thompson, for appellees.
ROBIN F. WYNNE, Associate Justice. BAKER, J., concurs. HANNAH, C.J., and DANIELSON, J., dissent.
ROBIN F. WYNNE, Associate Justice
This is an interlocutory appeal from the Pulaski County Circuit Court's denial of a motion to dismiss on sovereign-immunity grounds filed by appellants, the Arkansas Department of Human Services (DHS) and its director, John Selig. Under Rule 2(a)(10) of the Arkansas Rules of Appellate Procedure--Civil (2014), an appeal may be taken from a circuit court to the Arkansas Supreme Court from an order denying a motion to dismiss based on the defense of sovereign immunity or the immunity of a government official. As explained below, we affirm in part; reverse and dismiss in part; and dismiss in part.
This case involves a DHS rule requiring all licensed child-care centers to carry general-liability insurance. The rule was implemented pursuant to Act 778 of 2009, codified at Arkansas Code Annotated section 20-78-227 (Repl. 2014) and titled " Liability insurance and driver training requirements." Act of Apr. 3, 2009, No. 778, 2009 Ark. Acts 4222. Section 20-78-227 provides as follows:
(a) The purpose of this section is to enhance safe and responsible passenger transportation of children in child care by requiring appropriate liability insurance and driver training.
(b) The Division of Child Care and Early Childhood Education of the Department of Human Services is directed, in collaboration with the State Insurance Department, to develop and promulgate rules requiring sufficient and appropriate minimum levels of general liability insurance coverage for licensed child care centers and licensed and registered child care family homes, including coverage for transportation services when applicable.
(c) The division shall promulgate rules requiring all drivers of vehicles transporting children on behalf of licensed child care centers and licensed and registered child care family homes to complete a comprehensive program of driver safety training.
Emphasis added.) Based on this statute, DHS amended its licensing requirements to include certain minimum general-liability-insurance coverage for all child-care centers. Appellees, the plaintiffs below, are three school districts that each operate child-care centers licensed by DHS. The school districts filed a complaint in the Pulaski County Circuit Court on February 19, 2014, against Mike Beebe, individually and in his official capacity as governor of the State of Arkansas;  John M. Selig, individually and in his official capacity as director of DHS; and DHS. The school districts sought declaratory and injunctive relief, as well as costs and attorney's fees, alleging that DHS's requirement that they purchase general-liability insurance conflicted with their tort immunity under Arkansas Code Annotated section 21-9-301(a). They also alleged, among other things, that school-district child care is not a childcare facility subject to supervision by DHS. In their prayer for relief, the school districts sought the following:
a. A declaration that Act 778 of 2009 does not require a school district that operates a child care center or a pre-K program to purchase or maintain general liability insurance;
b. A declaration that Act 778 of 2009 in no way supersedes, repeals or overrules in any respect the application of the tort immunity statute for school districts found in A.C.A. § 21-9-301 even where they, as here, may operate a child care center or a pre-K program;
c. A declaration that school district child care is not a child care facility subject to supervision of DHS within the meaning of A.C.A. [§ ] 20-78-202( 2);
d. A declaration that the proposed rules and regulations promulgated by DHS pursuant to Act 778 of 2009 have not been published in accordance with the Act and applicable law and are, therefore, of no force and effect;
e. A declaration that there has been no consideration by the Legislature on the impact of Act 778 of 2009 on adequacy funding.
f. A preliminary injunction after notice and a hearing prohibiting the State, DHS, and any of their officials, officers, agents, servants or employees from
seeking to impose any rule, regulation, or other mandate upon the Plaintiffs that would require the Districts to purchase general liability insurance involuntarily, said preliminary injunction to be ...