FROM THE POLK COUNTY CIRCUIT COURT [NO. CV-2013-192]
HONORABLE JERRY RYAN, JUDGE
A. Curran, Associate General Counsel, University of Arkansas
System, for appellant.
Sanford Law Firm, PLLC, by: Josh Sanford, for appellee.
Rutledge, Attorney General, by: Lee Rudofsky, Arkansas
Solicitor General; Nicholas J. Bronni, Arkansas Deputy
Solicitor General; and Delena C. Hurst, Assistant Attorney
General, counsel for amicus curiae in support of appellant.
DAN KEMP, CHIEF JUSTICE.
The Board of Trustees of the University of Arkansas (Board),
filed this interlocutory appeal of an order of the Polk
County Circuit Court denying a motion to dismiss an action
brought by appellee Matthew Andrews for violations of the
overtime provisions of the Arkansas Minimum Wage Act,
codified at Arkansas Code Annotated sections 11-4-201 to -222
(Repl. 2012 & Supp. 2017). For reversal, the Board argues
that the circuit court erred in denying Andrews's motion
to dismiss because the doctrine of sovereign immunity
applies. Pursuant to Arkansas Supreme Court Rule 1-2(a)(1)
(2017), we have jurisdiction of this appeal because it
involves our interpretation of the Arkansas Constitution. We
reverse and dismiss.
Mountain Community College (RMCC), a publicly-funded,
nonprofit college in Mena, employed Andrews as a bookstore
manager from November 15, 2010, through May 9,
2013. His salary was $26, 824 per year. When
Andrews began working for the college, he received
compensation time for any hours worked beyond his average
forty-hour work week. According to Andrews, his "comp
time stopped" in August 2011. RMCC classified him as
exempt from the overtime requirements set forth in the
federal Fair Labor Standards Act (FLSA) and the Arkansas
Minimum Wage Act (AMWA). RMCC terminated Andrews for
insubordination in May 2013.
November 14, 2013, Andrews filed a complaint against RMCC
pursuant to the AMWA for failing to compensate him for
working overtime. On January 29, 2014, Andrews filed a first
amended and substituted complaint, alleging violations of the
overtime provisions of the AMWA and seeking overtime and
liquidated damages. In his prayer for relief, he requested
(1) the entry of a declaratory judgment that RMCC's pay
practices violated the AMWA; (2) the entry of a judgment for
damages for all unpaid regular rate and overtime compensation
under the AMWA; (3) an award of liquidated damages pursuant
to the AMWA; (4) the entry of a judgment for punitive damages
owed to Andrews pursuant to the Arkansas Civil Justice Reform
Act in an amount to be proven at trial; (5) the entry of a
judgment for any and all civil penalties to which Andrews may
be entitled; and (6) an order directing RMCC to pay Andrews
prejudgment interest, attorney's fees, and costs.
answered and pleaded sovereign immunity as an affirmative
defense. The parties filed cross motions for summary
judgment, which the circuit court denied. Subsequently, on
August 18, 2016, RMCC filed a motion to dismiss Andrews's
complaint, arguing that Andrews's claim under the AMWA
was barred by sovereign immunity, pursuant to article 5,
section 20 of the Arkansas Constitution. RMCC asserted that
the General Assembly did not have the authority to abrogate
the State's sovereign immunity in the AMWA.
September 14, 2016, the circuit court conducted a hearing on
RMCC's motion to dismiss and heard arguments from both
parties. The circuit court subsequently issued a letter order
denying RMCC's motion to dismiss. The circuit court ruled
that "RMCC has [not] met its burden of demonstrating
that the provision of the Arkansas Minimum Wage Act as it
applies to Andrews is unconstitutional" and that the
State may be sued for violations of the AMWA. In an order
entered October 24, 2016, the circuit court memorialized
these findings, denied RMCC's motion to dismiss, and
found that RMCC was "not entitled to sovereign immunity
as it relates to [Andrews's] claims under the AMWA."
RMCC filed a motion for reconsideration; the motion was
deemed denied. RMCC appeals.
sole point on appeal, RMCC argues that the circuit court
erred in denying its motion to dismiss. Specifically, RMCC
claims that section 11-4-218(e), as it applies to Andrews, is
unconstitutional because it violates article 5, section 20 of
the Arkansas Constitution. RMCC contends that the Arkansas
Constitution does not authorize the General Assembly to waive
the State's sovereign immunity. RMCC argues that this
court's case law that recognizes a legislative waiver as
an exception to sovereign immunity is not consistent with our
responds that the circuit court properly denied RMCC's
motion to dismiss because the General Assembly's
abrogation of sovereign immunity in the AMWA is
constitutional. Andrews claims that the sovereign-immunity
exception applies because the plain language of section
11-4-218 demonstrates that the intent of the General Assembly
allows for a right of action against the State.
Interlocutory Appeal and Standard of Review
2(a)(10) of the Arkansas Rules of Appellate Procedure-Civil
permits an appeal from an interlocutory "order denying a
motion to dismiss or for summary judgment based on the
defense of sovereign immunity or the immunity of a government
official." The rationale behind this rule is that
immunity from suit is effectively lost if the case is
permitted to go to trial when an immunity argument can
prevail. Ark. Lottery Comm'n v. Alpha Mktg.,
2012 Ark. 23, 386 S.W.3d 400.
generally review a circuit court's decision on a motion
to dismiss by treating the facts alleged in the complaint as
true and by viewing them in the light most favorable to the
plaintiff. Kennedy v. Ark. Parole Bd., 2017 Ark.
234. When the circuit court is presented with documents
outside the pleadings, we treat the case as an appeal from a
summary judgment and view the evidence in the light most
favorable to the party opposing the motion. Bayird v.
Floyd, 2009 Ark. 455, 344 S.W.3d 80. However, when the
issues on appeal do not involve factual questions but rather
the application of a legal doctrine, we simply determine
whether the moving party is entitled to judgment as a matter
of law. Id., 344 S.W.3d 80.
Doctrine of Sovereign Immunity
Board moved to dismiss Andrews's action based on
sovereign immunity. Article 5, section 20 of the Arkansas
Constitution provides that "[t]he State of Arkansas
shall never be made defendant in any of her courts."
Sovereign immunity is jurisdictional immunity from suit, and
jurisdiction must be determined entirely from the pleadings.
See LandsnPulaski, LLC v. Ark. Dep't of Corr.,
372 Ark. 40, 269 S.W.3d 793 (2007); Clowers v.
Lassiter, 363 Ark. 241, 213 S.W.3d 6 (2005); Ark.
Tech Univ. v. Link, 341 Ark. 495, 17 S.W.3d 809 (2000).
A suit against the State is barred by the sovereign-immunity
doctrine if a judgment for the plaintiff will operate to
control the action of the State or subject it to liability.
Ark. State Med. Bd. v. Byers, 2017 Ark. 213, 521
court has held that the Board is an instrumentality of the
State and is immune from suit. See Washington Cty. v. Bd.
of Trs., 2016 Ark. 34, 480 S.W.3d 173 (holding that the
university is an instrumentality of the State and that it was
immune from ad valorem taxation); Bd. of Trs. v.
Burcham, 2014 Ark. 61 (holding that Burcham's
wrongful-termination complaint was barred by sovereign
immunity and that a sovereign-immunity exception did not
court has held that the doctrine of sovereign immunity is
rigid but that it may be waived in limited circumstances.
Office of Child Support Enf't v. Mitchell, 330
Ark. 338, 954 S.W.2d 907 (1997). This court has recognized
that a claim of sovereign immunity may be surmounted in the
following three instances: (1) when the State is the moving
party seeking specific relief; (2) when an act of the
legislature has created a specific waiver of sovereign
immunity; and (3) when the state agency is acting illegally
or if a state agency officer refuses to do a purely
ministerial action required by statute. Ark. Dep't of
Cmty. Corr. v. City of Pine Bluff, 2013 Ark. 36, 425
Arkansas Constitution and Applicable Case Law
determining whether the Board is entitled to judgment as a
matter of law, we provide a brief history of the doctrine of
sovereign immunity in the Arkansas Constitution. Originally,
in 1868, the Arkansas Constitution read, "The general
assembly shall direct by law in what manner and in what
courts suits may be brought by and against the state."
Ark. Const. of 1868, art. 5, § 45. However, in 1874, the
people passed what was the fifth and current version of the
Arkansas Constitution. It altered the previous language and
stated that "[t]he State of Arkansas shall never be made
a defendant in any of her courts." Ark. Const. art. 5,
in 1935, this court considered the issue of whether the
legislature could waive the State's sovereign immunity.
See Ark. Hwy. Comm'n v. Nelson Bros., 191 Ark.
629, 87 S.W.2d 394 (1935). This court stated, "It is our
settled conviction that the state cannot give its consent to
the maintenance of an action against it." Id.
at 636, 87 S.W.2d at 397. This court followed that precedent
in Fairbanks v. Sheffield, 226 Ark. 703, 292 S.W.2d
82 (1956), by stating that a statute allowing suit against
the state park system was "an unconstitutional attempt
on the part of the legislature to consent to a suit against
the State." Id. at 706, 292 S.W.2d at 84. In
Fairbanks, this court held that article 5, section
20 was "mandatory and cannot be waived by the General
Assembly." Id. at 706, 292 S.W.2d at 84. Again,
in 1993, this court held that a statutory requirement for DHS
to make restitution to foster parents who sustained ...