CHRISTOPHER H. HARRIS APPELLANT
ASA HUTCHINSON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF ARKANSAS; AND PATRICK FISK, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY APPELLEES
FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CV-18-2951]
HONORABLE TIMOTHY DAVIS FOX, JUDGE
& Gillham, P.L.L.C., by: Luther Oneal Sutter and Lucien
Gillham, for appellant.
Rutledge, Att'y Gen., by: Maryna Jackson, Ass't
Att'y Gen., for appellee.
COURTNEY RAE HUDSON, ASSOCIATE JUSTICE
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.
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.
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.
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.
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.
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.
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.
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
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
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 ...