FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60-CV-14-595]
HONORABLE WENDELL L. GRIFFEN, JUDGE.
Rutledge, Att'y Gen., by: Patricia Van Ausdell, Ass't
Att'y Gen., and Monty Vaughan Baugh, Deputy Att'y
Gen., for appellant.
Holleman & Associates, P.A., by: John Holleman, Timothy
A. Steadman, and Jerry Garner, for appellees.
K. WOOD, ASSOCIATE JUSTICE.
Arkansas Department of Veterans Affairs (ADVA) appeals the
circuit court's denial of its motion to dismiss based on
sovereign immunity. We reverse and dismiss.
Diane Mallett and Joseph Fabits, are two former employees of
ADVA. In February 2014, Mallett, Fabits, and several others
filed a class-action complaint alleging that ADVA failed to
compensate them for working overtime in violation of the
Arkansas Minimum Wage Act (AMWA), Ark. Code Ann. §§
11-4-201 et seq. (Repl. 2012). They allege they
frequently worked through their lunch breaks and had to work
off-the-clock to complete their job duties; and therefore,
they are entitled to overtime wages. ADVA filed its answer in
March 2014. The circuit court granted class certification,
but we reversed and remanded with instructions to decertify
the class in Arkansas Department of Veterans Affairs v.
Mallett, 2015 Ark. 428, 474 S.W.3d 861.
two years after remand, ADVA filed a motion to dismiss
arguing that AMWA's abrogation of sovereign immunity
violates article 5, section 20 of the Arkansas Constitution.
The circuit court denied the motion to dismiss, and ADVA
appealed. We have appellate jurisdiction pursuant to Rule
2(a)(10) of the Arkansas Rules of Appellate Procedure-Civil.
advanced the same argument in its motion to dismiss the
claim as presented in Bd. of Trs. of Univ. of Ark. v.
Andrews, 2018 Ark. 12, 535 S.W.3d 616. As in
Andrews, the circuit court denied the motion to
dismiss. ADVA now argues Andrews controls. We agree.
Andrews controls. In Andrews, we held that
the provision of the AMWA that allows the State to be named
as a defendant is repugnant to article 5, section 20 of the
Arkansas Constitution. While the parties ask us to further
analyze Walther v. FLIS Enterprises, Inc. 2018 Ark.
64, 540 S.W.3d 264, this is not the case for us to do so. In
Andrews we struck the provision of the AMWA that
provided that this action could be brought against the state.
We therefore reverse the circuit court's denial of
ADVA's motion to dismiss on sovereign immunity. As we
stated in Andrews, the avenue for financial redress
is through the Claims Commission. Andrews, 2018 Ark.
12, at 12, 535 S.W.3d at 623.
Goodson and Hart, JJ., dissent.
Dan Kemp, Chief Justice, concurring.
with the majority's conclusion that we must reverse and
dismiss this case pursuant to article 5, section 20 of the
Arkansas Constitution. I write separately to state that the
people of Arkansas have the ability by constitutional