Dennis MILLIGAN, in His Official Capacity as Treasurer of the State of Arkansas, Appellant
v.
David SINGER, Appellee
Page 654
APPEAL
FROM THE PULASKI COUNTY CIRCUIT COURT, SECOND DIVISION [NO.
60CV-15-4618], HONORABLE CHRISTOPHER CHARLES PIAZZA, JUDGE
Mitchell,
Williams, Selig, Gates & Woodyard, P.L.L.C., Little Rock, by:
Byron Freeland, Kathlyn Graves, and Graham Talley, for
appellant.
Sutter
& Gillham, P.L.L.C., Little Rock, by: Luther Oneal Sutter and
Lucien Gillham, for appellee.
OPINION
ROBIN
F. WYNNE, Associate Justice
Dennis
Milligan, as Arkansas Treasurer of State, has filed an
interlocutory appeal from an order of the Pulaski County
Circuit Court denying his motion to dismiss a claim under the
Arkansas Whistle-Blower
Page 655
Act (AWBA) as barred by the states sovereign immunity. This
courts jurisdiction arises under Rule 2(a)(10) of the
Arkansas Rule of Appellate Procedure-Civil (2017). Because
the complaint is barred by the states sovereign immunity, we
reverse the order denying the motion to dismiss and dismiss
the complaint.
David
Singer, who had worked as the assistant for legislative
affairs and communications in the treasurers office prior to
his termination, filed a defamation suit against Jim Harris,
Milligans chief of staff in 2015. Singer subsequently filed
a supplemental complaint that added Milligan as a defendant
in his individual and official capacities, added new claims,
and sought monetary damages. Because the supplemental
complaint raised issues of federal law, Milligan successfully
moved to have the case removed to federal court.
While
the case in federal court was pending, Singer filed another
complaint in the Pulaski County Circuit Court seeking relief
for defamatory statements and alleging a violation of the
AWBA. The complaint named Milligan and Harris individually
and in their official capacities. The complaint alleged that
Harris had made defamatory statements about Singer with
Milligans approval, and that Singer was terminated after he
reported concerns about misuse of public funds and violations
of campaign laws. Milligan answered the complaint and alleged
that the complaint was barred by sovereign immunity.
In June
2017, Singer filed a second amended complaint alleging a
violation of the AWBA. The only defendant named in the
complaint was Milligan in his official capacity. In the
complaint, Singer sought lost wages, front pay or
reinstatement, lost earnings, attorneys fees, and costs.
Milligan filed a motion to dismiss the second amended
complaint. In the motion, Milligan alleged that the complaint
was barred by sovereign immunity and that it failed to state
a claim for relief and was subject to dismissal under Rule
12(b)(6) of the Arkansas Rules of Civil Procedure. The trial
court entered an order finding that the complaint was not
barred by sovereign immunity and denying the motion to
dismiss. This interlocutory appeal followed.
Article 5, § 20 of the Arkansas Constitution provides that
the "State of Arkansas shall never be made defendant in
any of her courts." Whether a party is immune from suit
is purely a question of law and is reviewed de novo. City
of Little Rock v. Yang, 2017 Ark. 18, 509 S.W.3d 632.
This
court previously considered a motion to dismiss on grounds of
sovereign immunity in a suit under the AWBA in Arkansas
Community Correction v. Barnes, 2018 Ark. 122');">2018 Ark. 122, 542
S.W.3d 841. In that case, Barnes had filed a suit alleging a
violation of the AWBA. Arkansas Community Correction moved to
dismiss, alleging that the complaint was barred by sovereign
immunity. The motion to dismiss was denied. On appeal, this
court reversed the order denying the motion to dismiss and
dismissed the complaint, holding that the purported
legislative waiver of the states sovereign immunity in the
AWBA is unconstitutional, pursuant to the holding in
Board of Trustees v. Andrews, 2018 Ark. 12, 535
S.W.3d 616.
Singer
asserts in his responsive brief that Milligan waived
jurisdiction by admitting the trial court had jurisdiction
over the subject matter and the parties in his answer to the
initial complaint. However, Milligan asserted that the claim
was barred by sovereign immunity in his motion to dismiss,
which was his initial pleading after the second amended
complaint was filed. His averments as to jurisdiction in his
previous answers are of no moment
Page 656
and, in any event, he raised the issue of sovereign immunity
in those pleadings as well. Singer also argues that the
governor waived sovereign immunity for the executive branch
by signing the AWBA into law. The governor does not enact
legislation. That is the function of the legislature, which
we have expressly held cannot waive the states immunity. The
governors signature does not act as evidence of agreement
with the legislation; it is instead ...