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Harris v. Hutchinson

Supreme Court of Arkansas

January 9, 2020



          Sutter & Gillham, P.L.L.C., by: Luther Oneal Sutter and Lucien Gillham, for appellant.

          Leslie Rutledge, Att'y Gen., by: Maryna Jackson, Ass't Att'y Gen., for appellee.


         Appellant Christopher H. Harris appeals the Pulaski County Circuit Court's order granting a motion to dismiss filed by appellees Arkansas Governor Asa Hutchinson and Arkansas Livestock and Poultry Commission Deputy Director Patrick Fisk. For reversal, Harris contends that the circuit court erred by granting the appellees' motion to dismiss on the basis of sovereign immunity and that the circuit court erred by granting the motion to dismiss pursuant to Arkansas Rule of Civil Procedure 12(b)(6). We affirm in part, reverse in part, and remand.

         Harris alleged in his complaint that he worked for the Arkansas Livestock and Poultry Commission, which is a division of the Arkansas Department of Agriculture. Harris claimed that in March 2018 he was asked to interview applicants for a field livestock-inspector position, and among those he interviewed was an unqualified candidate favored by Hutchinson. Harris eventually selected a different candidate, Morgan Keener, for the position. According to Harris, even though Keener was the most qualified, Fisk, at Hutchinson's direction, instructed him to hire the individual favored by Hutchinson. Harris asserted that he refused to violate the state's policy to hire the most qualified individual and that he was terminated the next day for insubordination. Bringing claims pursuant to the Arkansas Whistle-Blower Act (AWBA), Arkansas Code Annotated sections 21-1-601 et seq. (Repl. 2016 & Supp. 2017), as well as the state and federal constitutions, Harris sought damages against the appellees in their individual capacities only but also prayed for reinstatement and other injunctive relief.

         The appellees filed a motion to dismiss on June 8, 2018, arguing that Harris's factual allegations failed to demonstrate a violation of any statutory or constitutional right, that they were entitled to sovereign immunity as to Harris's claims against them in their official capacities, that they were entitled to statutory immunity as to Harris's claims against them in their individual capacities, and that they were entitled to qualified immunity as to Harris's claims against them in both their individual and official capacities. The circuit court's July 23, 2018 order granted the appellees' motion to dismiss and dismissed all claims solely "on the basis of sovereign immunity." Harris filed a timely appeal.

         In reviewing a circuit court's decision on a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Worden v. Kirchner, 2013 Ark. 509, 431 S.W.3d 243. We look only to the allegations in the complaint and not to matters outside the complaint. Ark. State Plant Bd. v. McCarty, 2019 Ark. 214, 576 S.W.3d 473. We treat only the facts alleged in the complaint as true but not a plaintiff's theories, speculation, or statutory interpretation. Id. Whether a party is immune from suit is purely a question of law that we review de novo. Milligan v. Singer, 2019 Ark. 177, 574 S.W.3d 653.

         Harris alleged that his termination violated the AWBA and his rights guaranteed by the state and federal constitutions. The AWBA protects public employees from retaliation based on the employee's good-faith reporting of the violation of a law, rule, or regulation, or the waste of public funds, to an appropriate authority. Ark. Code Ann. § 21-1-603. To establish a retaliation claim under the First Amendment to the United States Constitution, Harris must demonstrate that he engaged in protected activity and that this activity was a substantial or motivating factor in his termination. McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855 (8th Cir. 2009). Harris's "right to remonstrate" is found in article 2, section 4 of the Arkansas Constitution, which states that the right of the people "peaceably to assemble, to consult for the common good; and to petition, by address or remonstrance, the government, or any department thereof, shall never be abridged." Ark. Const. art. 2, § 4.

         We initially consider the AWBA and constitutional claims brought against the appellees in their official capacities. Harris argues that the circuit court erred by dismissing his complaint on the basis of sovereign immunity. The Arkansas Constitution unequivocally provides that "[t]he State of Arkansas shall never be made defendant in any of her courts." Ark. Const. art. 5, § 20. We extend this sovereign immunity to state employees sued in their official capacities. Banks v. Jones, 2019 Ark. 204, 575 S.W.3d Ill. That is because a suit against a state official in his or her official capacity is not a suit against that person but rather is a suit against that official's office and is no different than a suit against the State itself. Id. If a judgment in favor of a plaintiff would operate to control the action of the State or subject it to liability, the suit is one against the State and is barred by the doctrine of sovereign immunity. Ark. Tech. Univ. v. Link, 341 Ark. 495, 17 S.W.3d 809 (2000). However, sovereign immunity is an affirmative defense that must be raised and ruled on at the circuit court level in order to preserve the issue. Wilson v. Ark. Dep't of Human Servs., 2018 Ark. 358, 562 S.W.3d 201. Additionally, the defense of sovereign immunity is inapplicable in a lawsuit seeking only declaratory or injunctive relief and alleging an illegal, unconstitutional, or ultra vires act. Martin v. Haas, 2018 Ark. 283, 556 S.W.3d 509.

         The General Assembly clearly intended to subject the State to liability under the AWBA. Ark. Code Ann. § 21-1-602(5); 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.). Nevertheless, we have held that the Arkansas Constitution prohibits legislative waivers of the State's sovereign immunity. Bd. of Trs. of Univ. of Ark. v. Andrews, 2018 Ark. 12, 535 S.W.3d 316. Although the issue in Andrews was the Arkansas Minimum Wage Act, we applied the Andrews rationale in holding that the AWBA's purported legislative waiver of sovereign immunity violates the Arkansas Constitution. Ark. Cmty. Corr. v. Barnes, 2018 Ark. 122, 542 S.W.3d 841.

         On appeal, Harris presents multiple arguments in support of his position that sovereign immunity does not foreclose his official-capacity claims. Harris acknowledges this court's holdings in Andrews and Barnes but claims that those cases did not address arguments that either article 2 or article 6 trumps article 5, section 20 of our constitution. He additionally argues that the governor waived sovereign immunity for the executive branch by signing the AWBA. Finally, Harris asserts that the State of Arkansas is not a named defendant and that we should no longer follow Andrews.

         Harris first argues that article 5, section 20 must yield to article 2. Article 2, section 13 of the Arkansas Constitution provides that "every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property, or character." Although Andrews and Barnes did not address Harris's contention that article 2 supersedes section 20 of article 5, we considered that very argument in an earlier case. Bryant v. Ark. State Highway Comm'n, 233 Ark. 41, 342 S.W.2d 415 (1961). In rejecting the assertion that the State's immunity from suit conflicted with other constitutional provisions, we stated,

This argument must be rejected. The framers of the constitution certainly knew that instances of hardship would result from the prohibition of suits against the State, but they nevertheless elected to write that immunity into the constitution. The language is too plain to be misunderstood, and it is our duty to give effect to it. The appellants' argument, carried to its logical end, would completely destroy the State's immunity from suit, for it could be argued in every case that to exempt ...

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