LONNIE WILLIAMS AND PATIENCE BARTUNEK, IN THEIR OFFICIAL CAPACITIES AS EMPLOYEES OF ARKANSAS STATE UNIVERSITY APPELLANTS
KIA MCCOY APPELLEE
FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CV-15-5990]
HONORABLE CHRISTOPHER CHARLES PIAZZA, JUDGE
Rutledge, Att'y Gen., by: Jennifer L. Merritt, Ass't
Att'y Gen., for appellants.
& Gillham, P.L.L.C., by: Luther Oneal Sutter; and Baker
& Schulze, by: J.G. "Gerry" Schulze, for
K. WOOD, ASSOCIATE JUSTICE.
Williams and Patience Bartunek, in their official capacities
as employees of Arkansas State University, bring this
interlocutory appeal under Rule 2(a)(10) of the Arkansas
Rules of Appellate Procedure-Civil from an order denying
their motion to dismiss. Appellants assert that Kia
McCoy's complaint is barred by sovereign immunity. We
reverse and remand in part and dismiss in part.
complaint, McCoy alleges that she was an Arkansas State
University ("University") nursing student from
August 2014 until May 2015. In September 2015, McCoy took and
passed a re-entry exam. Shortly after she passed the exam,
McCoy contends she received an email from the
"Misconduct Department" stating that she had
violated school policy. A subsequent letter to McCoy stated
that she "fail[ed] to comply." McCoy later learned
that the University had found photographs of her quiz on
another student's phone. She was accused of taking the
photographs and sending them to another student.
a hearing, McCoy was suspended from the University until
August 2016. She appealed her suspension, but Williams denied
the appeal. Thereafter, McCoy's attorney submitted a
Freedom of Information Act ("FOIA") request to the
University. The University denied the request until McCoy
completed a consent to release the requested documents. In
her complaint, McCoy asserted that appellants denied her due
process under the Arkansas Constitution and violated FOIA.
She petitioned for declaratory judgment, an injunction
clearing her name, and an order reinstating her to the
nursing program at the University.
filed a motion to dismiss. They argued the complaint was
barred by the doctrine of sovereign immunity because McCoy
did not state a cognizable due-process violation. They also
argued the FOIA claim failed as a matter of law because the
educational records McCoy requested are shielded from
disclosure under Ark. Code Ann. § 25-19-105(b)(2) (Supp.
2017). The circuit court denied the motion to dismiss, and
this appealed followed.
reviewing the denial of the motion to dismiss on
sovereign-immunity grounds, we treat the facts alleged in the
complaint as true and view them in the light most favorable
to the party who filed the complaint. Johnson v.
Butler, 2016 Ark. 253, 494 S.W.3d 412. We also resolve
all reasonable inferences in favor of the complaint and
construe the pleadings liberally. Id. Because our
rules require fact pleading, the complaint must state facts,
not mere conclusions, to entitle the pleader to relief.
Id. Our standard of review for the denial of a
motion to dismiss is whether the circuit court abused its
discretion. Ark. State Claims Comm'n v. Duit Constr.
Co., Inc., 2014 Ark. 432, 445 S.W.3d 496.
immunity is immunity from suit. Id. It arises from
article 5, section 20 of the Arkansas Constitution, which
provides, "The State of Arkansas shall never be made a
defendant in any of her courts." We have extended
sovereign immunity to state agencies and state employees sued
in their official capacities. Ark. Dep't of Human
Servs. v. Fort Smith Sch. Dist., 2015 Ark. 81, 455
S.W.3d 294. In determining whether the doctrine of sovereign
immunity applies, the court must decide whether a judgment
for the plaintiff will operate to control the action of the
State or subject it to liability. Bd. of Trs. v.
Burcham, 2014 Ark. 61.
past, we have recognized an exception to the defense of
sovereign immunity when the State is acting illegally,
unconstitutionally, or if a state-agency officer refuses to
do a purely ministerial action required by
statute. Duit, 2014 Ark. 432, at 7, 445
S.W.3d at 502. Here, appellants assert that McCoy failed to
plead sufficient facts to demonstrate an unconstitutional act
that would avoid application of sovereign immunity.
complaint alleging illegal and unconstitutional acts by the
State as an exception to the sovereign immunity doctrine must
comply with our fact-pleading rules. Id. In her
complaint, McCoy alleges that appellants denied her specific
details of the charges against her, the right to confront her
accuser, and sufficient time to review the evidence against
her, resulting in a due-process violation. While a student is
entitled to notice and a hearing, a "full dress judicial
hearing is not required." Henderson State Univ. v.
Spadoni, 41 Ark.App. 33, 36, 848 S.W.2d 951, 953 (1993);
see also Goss v. Lopez, 419 U.S. 565, 578 (1975);
Dixon v. Ala. State Bd. of Educ., 294 F.2d 150 (5th
Cir. 1961). In Goss, the Supreme Court stated that
it did not construe due process to require students the
opportunity to secure counsel, confront witnesses, or to call
their own witnesses. Goss, 419 U.S. at 583.
Arkansas has followed the reasoning of Goss.
See, e.g., Spadoni, 41 Ark.App. 33, 848
S.W.2d 951 (1993).
complaint fails to plead facts that, if proven, would
demonstrate a due process violation that she can argue was an
illegal or unconstitutional act sufficient to avoid sovereign
immunity. The complaint concedes that McCoy was given notice
of the charges and afforded a hearing. It states that she was
notified of the violation of "failure to comply"
via email and later by letter. The complaint also indicates
that hearings were held, that she appealed from the imposed
sanction, and that Williams denied her appeal. Furthermore,
although McCoy attaches the University handbook to her
complaint, she does not identify with specificity how
appellants failed to comply with those policies. While she
points to page 22 of the handbook and states that her case
"was supposed to be heard by a Committee, " she
later concedes that the hearings were held. "The mere
statement that it is so, without factual support, simply
fails to comport with our fact-pleading requirements."
Duit, 2014 Ark. 432, at 8, 445 S.W.3d at 503.
Therefore, taking the facts alleged in McCoy's complaint
as true and viewing them in the light most favorable to her,
we cannot say that it states sufficient facts to support a
due-process violation. Consequently, the exception to the
sovereign-immunity doctrine for unconstitutional acts is not
applicable, and her due-process claim is barred by sovereign
immunity. We therefore reverse the circuit court's denial
of appellants' motion to dismiss McCoy's due-process
claims and remand for entry of an order consistent with this
at the circuit court, appellants alleged that McCoy's
FOIA claim failed based on sovereign immunity. On appeal,
they cite no legal support in support of a sovereign immunity
defense, which is the only issue we have jurisdiction to
review on this interlocutory appeal. They instead have shaped
their argument to state that as a matter of law the
educational records that she requested from the University
are exempt from disclosure under Ark. Code Ann. §
25-19-105(b)(2). We therefore dismiss this claim for lack of
appellate jurisdiction. Rule 2 does not authorize an
interlocutory appeal from the denial of a motion to dismiss
generally. It allows an interlocutory appeal of a circuit
court's denial of a motion to dismiss under Rule 2(a)(10)
based on sovereign immunity. However, we do not hear on
interlocutory appeal any issue other than whether the circuit
court erred in denying summary judgment on the issue of
sovereign immunity. See City of Little Rock v. Dayong
Yang, 2017 Ark. 18, 509 S.W.3d 632; City of ...