FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CV-15-1361]
HONORABLE TIMOTHY DAVIS FOX, JUDGE REVERSED AND DISMISSED.
Rutledge, Att'y Gen., by: Maryna Jackson, Ass't
Att'y Gen., for appellant.
Churchwell Law Offices, by: Joseph Churchwell; and Sutter
& Gillham, P.L.L.C., by: Luther Oneal Sutter, for
A. WOMACK, Associate Justice
appellant, Arkansas Community Correction ("ACC"),
filed an interlocutory appeal under Rule 2(a)(10) of the
Arkansas Rules of Appellate Procedure-Civil from an order of
the Pulaski County Circuit Court denying its motion for
judgment on the pleadings. The appellant asserts that Annette
Barnes's complaint is barred by the doctrine of sovereign
immunity. We reverse and dismiss.
alleged in her complaint that she was terminated from her
position with the ACC for protesting discriminatory actions
on behalf of her employer and participating in an
investigation designed to discover further discrimination.
She alleged that her termination was a violation of the
Arkansas Whistle-Blower Act ("AWBA") and asked for
damages, reinstatement, attorneys' fees, costs, and all
other relief available under the Act and the law. ACC filed
its answer and affirmatively pled that her claim was barred
by sovereign immunity. Thereafter, ACC filed a motion for
judgment on the pleadings pursuant to Ark. R. Civ. P. 12(c)
arguing that it is an agency of the State and the General
Assembly could not validly waive the state's sovereign
immunity under the AWBA. Ark. Code Ann. §§ 21-1-601
et seq. (Repl. 2016). The circuit court denied the
motion and ACC appealed.
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." Bd. of Trs. v. Andrews, 2018 Ark.
12, at 4, 535 S.W.3d 616, 618. The issue of whether
a party is immune from suit is purely a question of law and
is reviewed de novo. Id.
5 of the Arkansas Constitution is the Legislative Article,
which, among other things, outlines the powers, duties,
responsibilities, and limitations of the General Assembly.
Article 5 section 20 provides that "[t]he State of
Arkansas shall never be made defendant in any of her
courts." In Andrews, the Board of Trustees of
the University of Arkansas argued that it was immune from
suit for claims under the Arkansas Minimum Wage Act based on
sovereign immunity. Andrews, 2018 Ark. 12, at 2-3,
535 S.W.3d at 618. This court concluded that "the
General Assembly cannot waive the State's immunity,
" and therefore, the statute that provided for the State
to be made a defendant in the Act was beyond the scope of
legislative powers as defined by the Arkansas Constitution.
Id. at 10-12, 535 S.W.3d at 622-23. In reaching that
conclusion, we interpreted the constitution "precisely
as it reads" and determined that "[t]he drafters of
our current constitution removed language from the 1868
constitution that provided the General Assembly with
statutory authority to waive sovereign immunity and instead
used the word 'never.'" Id. at 10-11,
535 S.W.3d at 622. Regarding our previous decisions, this
court specifically stated, "To the extent that other
cases conflict with this holding, we overrule those
opinions." Id. at 11, 535 S.W.3d at 623.
the Minimum Wage Act, under the AWBA if there is unlawful
adverse action on behalf of a public employer then the
employee may claim injunctive relief, reinstatement,
compensation, and attorneys' fees. Ark. Code Ann. §
21-1-605 (Repl. 2016). The General Assembly clearly intended
to subject the State to liability under the AWBA. Ark. Code
Ann. § 21-1-602(5) (Repl. 2016); Smith v.
Daniel, 2014 Ark. 519, at 6, 452 S.W.3d 575, 578-79
(when the General Assembly authorized a suit against a
"public employer" it expressly waived sovereign
immunity). Per our holding in Andrews, to the extent
the legislature subjected the State to liability in the AWBA,
it is prohibited by article 5, section 20 of the Arkansas
Constitution. ACC was entitled to judgment as a matter of
law, and the circuit court erred when it denied ACC's
motion for judgment on the pleadings based on sovereign
immunity. We emphasize here, as in Andrews, that the
only issue before this court is whether the General
Assembly's choice to abrogate sovereign immunity in the
AWBA is prohibited by the constitution. We hold that it is.
We therefore reverse and dismiss the case
Reversed and dismissed.
and Hart, JJ., dissent.
F. Wynne, Justice, concurring.
with the majority that the legislative waiver of the
state's sovereign immunity contained in the Arkansas
Whistle-Blower Act (AWBA), Arkansas Code Annotated sections
21-1-601 et seq. (Repl. 2016), is unconstitutional for the
reasons outlined in our decision in Board of Trustees v.
Andrews, 2018 Ark. 12, 535 S.W.3d 616, a case involving
the Arkansas Minimum Wage Act (AMWA). I write separately to
explain the reasoning behind my agreement.
5, § 20 of the Arkansas Constitution prohibits the State
of Arkansas from being made a defendant in any of her courts.
The purported waiver of sovereign immunity contained in the
AWBA seeks, by its own operation, to override Article 5,
§ 20. This case and Andrews stand for the
proposition that the legislature does not have the authority
to override Article 5, § 20. I feel it imperative to
note that this is the only proposition for which
these cases stand regarding the state's constitutional
immunity from suit, as it was the only issue before this
court in either case. The purported waivers contained in the
AMWA and AWBA are unconstitutional. The question of whether
there exist any circumstances under which a state actor may
be sued under these acts is not addressed in this case or
Andrews, and remains for another time.
R. Baker, Justice, dissenting.
Justice Hart's dissent ably sets out many of the flaws in
the majority's opinion in Andrews, and I join
it. However, I write separately to point out the problems
inherent in the broad sweeping language employed by the
majority in Andrews. In overruling decades of
precedent, the majority in Andrews held that ".
. . [W]e interpret the constitutional provision, The State of
Arkansas shall never be made a defendant in any of her
courts, precisely as it reads. The drafters of our current
constitution removed language from the 1868 constitution that
provided the General Assembly with statutory authority to
waive sovereign immunity and instead used the word
'never.' See Ark. Const. of 1868, art. 5,
§ 45; Ark. Const. art. 5, § 20." If
"never" does indeed mean never, as the majority
held in Andrews, and made means cause to become
-rather than compelled, as I contended in my dissent in
Andrews is the correct interpretation - then this
must be the law for everyone, all of the time. The majority
is not free to pick and choose when it will apply.
"Never" does not mean unless an attorney for the
state has failed to raise the issue, as the majority held in
Walther v. Flis Enterprises Inc., 2018 Ark. 64, nor
can it mean unless authorized by the judicial branch or the
executive branch rather than the legislative branch.
Likewise, "never" cannot mean except when not ruled
on by the circuit court below. The definition of
"never" is "at no time"
Merriam-Webster's Collegiate Dictionary (9th
ed.) (1991), or "not ever; on no occasion; at no
time" American Heritage Dictionary (4th ed.)
(2000). Thus, because the Arkansas Supreme Court is a
"court" established by the Arkansas Constitution,
the State of Arkansas cannot be caused to become a defendant
in this court, by this court, or in any other Arkansas court
under the reasoning employed by the majority in
Andrews. Such an interpretation clearly conflicts
with other provisions of the constitution which is a fact the
majority conveniently chose to ignore in Andrews.
only twenty-three days after the mandate issued in
Andrews, the majority abandoned the holding of that
case, and in Walther, without distinguishing
Andrews or doing a proper Constitutional analysis,
held that sovereign immunity was waived by the attorney for
the State. Now, again without a proper constitutional
analysis, the majority returns to the holding in
Andrews to dismiss Barnes' case. While I
recognize this is the logical result ...