Cite as 2018 Ark. 12
SUPREME COURT OF ARKANSAS
No. CV-17-168
Opinion Delivered: January 18, 2018
THE BOARD OF TRUSTEES OF THE
UNIVERSITY OF ARKANSAS
APPELLANT
APPEAL FROM THE POLK
V. COUNTY CIRCUIT COURT
[NO. CV-2013-192]
MATTHEW ANDREWS
APPELLEE HONORABLE JERRY RYAN,
JUDGE
REVERSED AND DISMISSED.
JOHN DAN KEMP, Chief Justice
Appellant, The Board of Trustees of the University of Arkansas (Board), filed this
interlocutory appeal of an order of the Polk County Circuit Court denying a motion to
dismiss an action brought by appellee Matthew Andrews for violations of the overtime
provisions of the Arkansas Minimum Wage Act, codified at Arkansas Code Annotated
sections 11-4-201 to -222 (Repl. 2012 & Supp. 2017). For reversal, the Board argues that
the circuit court erred in denying Andrews’s motion to dismiss because the doctrine of
sovereign immunity applies. Pursuant to Arkansas Supreme Court Rule 1-2(a)(1) (2017),
we have jurisdiction of this appeal because it involves our interpretation of the Arkansas
Constitution. We reverse and dismiss.
I. Facts
Rich Mountain Community College (RMCC), a publicly-funded, nonprofit college
in Mena, employed Andrews as a bookstore manager from November 15, 2010, through
May 9, 2013.1 His salary was $26,824 per year. When Andrews began working for the
college, he received compensation time for any hours worked beyond his average forty-
hour work week. According to Andrews, his “comp time stopped” in August 2011. RMCC
classified him as exempt from the overtime requirements set forth in the federal Fair Labor
Standards Act (FLSA) and the Arkansas Minimum Wage Act (AMWA). RMCC terminated
Andrews for insubordination in May 2013.
On November 14, 2013, Andrews filed a complaint against RMCC pursuant to the
AMWA for failing to compensate him for working overtime. On January 29, 2014,
Andrews filed a first amended and substituted complaint, alleging violations of the overtime
provisions of the AMWA and seeking overtime and liquidated damages. In his prayer for
relief, he requested (1) the entry of a declaratory judgment that RMCC’s pay practices
violated the AMWA; (2) the entry of a judgment for damages for all unpaid regular rate and
overtime compensation under the AMWA; (3) an award of liquidated damages pursuant to
the AMWA; (4) the entry of a judgment for punitive damages owed to Andrews pursuant
to the Arkansas Civil Justice Reform Act in an amount to be proven at trial; (5) the entry
of a judgment for any and all civil penalties to which Andrews may be entitled; and (6) an
order directing RMCC to pay Andrews prejudgment interest, attorney’s fees, and costs.
RMCC answered and pleaded sovereign immunity as an affirmative defense. The
parties filed cross motions for summary judgment, which the circuit court denied.
Subsequently, on August 18, 2016, RMCC filed a motion to dismiss Andrews’s complaint,
1
On February 1, 2017, RMCC became a part of the University of Arkansas System.
The circuit court took judicial notice of the merger and ordered that the Board be
substituted as the defendant.
2
arguing that Andrews’s claim under the AMWA was barred by sovereign immunity,
pursuant to article 5, section 20 of the Arkansas Constitution. RMCC asserted that the
General Assembly did not have the authority to abrogate the State’s sovereign immunity in
the AMWA.
On September 14, 2016, the circuit court conducted a hearing on RMCC’s motion
to dismiss and heard arguments from both parties. The circuit court subsequently issued a
letter order denying RMCC’s motion to dismiss. The circuit court ruled that “RMCC has
[not] met its burden of demonstrating that the provision of the Arkansas Minimum Wage
Act as it applies to Andrews is unconstitutional” and that the State may be sued for violations
of the AMWA. In an order entered October 24, 2016, the circuit court memorialized these
findings, denied RMCC’s motion to dismiss, and found that RMCC was “not entitled to
sovereign immunity as it relates to [Andrews’s] claims under the AMWA.” RMCC filed a
motion for reconsideration; the motion was deemed denied. RMCC appeals.
II. Sovereign Immunity
For the sole point on appeal, RMCC argues that the circuit court erred in denying
its motion to dismiss. Specifically, RMCC claims that section 11-4-218(e), as it applies to
Andrews, is unconstitutional because it violates article 5, section 20 of the Arkansas
Constitution. RMCC contends that the Arkansas Constitution does not authorize the
General Assembly to waive the State’s sovereign immunity. RMCC argues that this court’s
case law that recognizes a legislative waiver as an exception to sovereign immunity is not
consistent with our constitution.
3
Andrews responds that the circuit court properly denied RMCC’s motion to dismiss
because the General Assembly’s abrogation of sovereign immunity in the AMWA is
constitutional. Andrews claims that the sovereign-immunity exception applies because the
plain language of section 11-4-218 demonstrates that the intent of the General Assembly
allows for a right of action against the State.
A. Interlocutory Appeal and Standard of Review
Rule 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.” The
rationale behind this rule is that immunity from suit is effectively lost if the case is permitted
to go to trial when an immunity argument can prevail. Ark. Lottery Comm’n v. Alpha Mktg.,
2012 Ark. 23, 386 S.W.3d 400.
We generally review a circuit court’s decision on a motion to dismiss by treating the
facts alleged in the complaint as true and by viewing them in the light most favorable to the
plaintiff. Kennedy v. Ark. Parole Bd., 2017 Ark. 234. When the circuit court is presented
with documents outside the pleadings, we treat the case as an appeal from a summary
judgment and view the evidence in the light most favorable to the party opposing the
motion. Bayird v. Floyd, 2009 Ark. 455, 344 S.W.3d 80. However, when the issues on
appeal do not involve factual questions but rather the application of a legal doctrine, we
simply determine whether the moving party is entitled to judgment as a matter of law. Id.,
344 S.W.3d 80.
B. Doctrine of Sovereign Immunity
4
The Board moved to dismiss Andrews’s action based on sovereign immunity. Article
5, section 20 of the Arkansas Constitution provides that “[t]he State of Arkansas shall never
be made defendant in any of her courts.” Sovereign immunity is jurisdictional immunity
from suit, and jurisdiction must be determined entirely from the pleadings. See
LandsnPulaski, LLC v. Ark. Dep’t of Corr., 372 Ark. 40, 269 S.W.3d 793 (2007); Clowers v.
Lassiter, 363 Ark. 241, 213 S.W.3d 6 (2005); Ark. Tech Univ. v. Link, 341 Ark. 495, 17
S.W.3d 809 (2000). A suit against the State is barred by the sovereign-immunity doctrine if
a judgment for the plaintiff will operate to control the action of the State or subject it to
liability. Ark. State Med. Bd. v. Byers, 2017 Ark. 213, 521 S.W.3d 459.
This court has held that the Board is an instrumentality of the State and is immune
from suit. See Washington Cty. v. Bd. of Trs., 2016 Ark. 34, 480 S.W.3d 173 (holding that
the university is an instrumentality of the State and that it was immune from ad valorem
taxation); Bd. of Trs. v. Burcham, 2014 Ark. 61 (holding that Burcham’s wrongful-
termination complaint was barred by sovereign immunity and that a sovereign-immunity
exception did not apply).
This court has held that the doctrine of sovereign immunity is rigid but that it may
be waived in limited circumstances. Office of Child Support Enf’t v. Mitchell, 330 Ark. 338,
954 S.W.2d 907 (1997). This court has recognized that a claim of sovereign immunity may
be surmounted in the following three instances: (1) when the State is the moving party
seeking specific relief; (2) when an act of the legislature has created a specific waiver of
sovereign immunity; and (3) when the state agency is acting illegally or if a state agency
5
officer refuses to do a purely ministerial action required by statute. Ark. Dep’t of Cmty. Corr.
v. City of Pine Bluff, 2013 Ark. 36, 425 S.W.3d 731.
C. Arkansas Constitution and Applicable Case Law
In determining whether the Board is entitled to judgment as a matter of law, we
provide a brief history of the doctrine of sovereign immunity in the Arkansas Constitution.
Originally, in 1868, the Arkansas Constitution read, “The general assembly shall direct by
law in what manner and in what courts suits may be brought by and against the state.” Ark.
Const. of 1868, art. 5, § 45. However, in 1874, the people passed what was the fifth and
current version of the Arkansas Constitution. It altered the previous language and stated that
“[t]he State of Arkansas shall never be made a defendant in any of her courts.” Ark. Const.
art. 5, § 20.
Subsequently, in 1935, this court considered the issue of whether the legislature
could waive the State’s sovereign immunity. See Ark. Hwy. Comm’n v. Nelson Bros., 191
Ark. 629, 87 S.W.2d 394 (1935). This court stated, “It is our settled conviction that the
state cannot give its consent to the maintenance of an action against it.” Id. at 636, 87
S.W.2d at 397. This court followed that precedent in Fairbanks v. Sheffield, 226 Ark. 703,
292 S.W.2d 82 (1956), by stating that a statute allowing suit against the state park system
was “an unconstitutional attempt on the part of the legislature to consent to a suit against
the State.” Id. at 706, 292 S.W.2d at 84. In Fairbanks, this court held that article 5, section
20 was “mandatory and cannot be waived by the General Assembly.” Id. at 706, 292 S.W.2d
at 84. Again, in 1993, this court held that a statutory requirement for DHS to make
restitution to foster parents who sustained damage to their property by juveniles in DHS’s
6
legal custody was prohibited by the doctrine of sovereign immunity under article 5, section
20. See Dep’t of Human Servs. v. State, 312 Ark. 481, 850 S.W.2d 847 (1993).
This court adhered to this principle for over sixty years until 1996 in Arkansas
Department of Finance & Administration v. Staton, 325 Ark. 341, 942 S.W.2d 804 (1996), and
in Arkansas Department of Finance & Administration v. Tedder, 326 Ark. 495, 932 S.W.2d 755
(1996). In both cases, Arkansas Code Annotated section 26–18–507(e)(2)(A) (Repl. 1992)
specifically granted legislative permission to a taxpayer to sue the State after a claim for
refund had been filed and refused or the Commissioner had not acted upon it. In Staton,
this court held that because that sole taxpayer had complied with the statute, the State’s
sovereign immunity was waived as to her. Staton, 325 Ark. at 347, 942 S.W.2d at 806. In
Tedder, this court reached a similar conclusion, holding that because the proposed class of
taxpayers had not complied with section 26-18-507, only the named class representative
could maintain a suit against the State. This court stated,
Our constitution generally prohibits suits against the state. Ark. Const. art. 5,
§ 20. However, Ark. Code Ann. § 26-18-507(e)(2)(A) (Repl. 1992) permits a
taxpayer to sue the state for an improperly collected sales tax only after a refund has
been sought and refused or the Commissioner has not acted upon the taxpayer’s
request. Since Mr. Tedder is the only taxpayer who had requested a refund and had
his application denied, the Department claims that the chancery court did not have
subject-matter jurisdiction over the remaining members of the proposed class. In
State v. Staton, 325 Ark. 341, 934 S.W.2d 478 (1996) (substituted opinion granting
rehearing), we resolved this issue in the Department’s favor. Recognizing strong fiscal
public policy concerns, we held that full compliance with the statute is necessary
before sovereign immunity is waived.
Tedder, 326 Ark. at 496, 932 S.W.2d at 756.
C. Applicable Statutes and Statutory Construction
7
In 2006, the General Assembly enacted a provision allowing employees to file suit
against the State in AMWA actions. Acts of 2006 (1st Ex. Sess.), Act 15, § 5, eff. Oct. 1,
2006; Acts of 2006 (1st Ex. Sess.), Act 16, § 5, eff. Oct. 1, 2006. Subsequently, in 2014,
Andrews filed his amended complaint alleging violations of the AMWA, which provides in
relevant part,
(e)(1) An employee may bring an action for equitable and monetary relief against an
employer, including the State of Arkansas or a political subdivision of the state, if the employer
pays the employee less than the minimum wages, including overtime wages, to which the
employee is entitled under or by virtue of this subchapter.
(2) If the employee brings an action under this subsection, then any complaint
before the director by the employee on the same matter shall be dismissed with
respect to that employee.
(3)(A) The employee shall not be required to exhaust administrative remedies
before bringing an action.
(B) There shall be no procedural, pleading, or burden of proof requirements
beyond those that apply generally to civil suits in order to maintain the action.
Ark. Code Ann. § 11-4-218(e) (emphasis added). “Employer” is defined as “the State of
Arkansas” or “any political subdivision of the state[.]” Ark. Code Ann. § 11-4-203(4)(A).
We review issues of statutory interpretation de novo, as it is for this court to
determine the meaning of a statute. Ark. Dep’t of Corr. v. Shults, 2017 Ark. 300, 529 S.W.3d
628. In the absence of a showing that the circuit court erred, its interpretation will be
accepted as correct on appeal. Id., 529 S.W.3d 628. The primary rule of statutory
interpretation is to give effect to the intent of the legislature. Id., 529 S.W.3d 628. We first
construe the statute just as it reads, giving the words their ordinary and usually accepted
meaning in common language. Id., 529 S.W.3d 628.
If we apply our post-1996 caselaw, the plain language of section 11-4-218(e) would
qualify as an exception to sovereign immunity because it contains an express waiver created
8
by the legislature. Subsection (e)(1) allows for “an action for equitable and monetary relief”
against the State of Arkansas “or a political subdivision of the State” for violations of the
AMWA, and this court has held that the Board is an instrumentality of the State. State
Comm’r of Labor v. Univ. of Ark. Bd. of Trs., 241 Ark. 399, 407 S.W.2d 916 (1966). However,
the Board contends that this statutorily created waiver violates the Arkansas Constitution.
This court begins with the axiom that every act carries a strong presumption of
constitutionality. Ark. Dep’t of Corr. v. Bailey, 368 Ark. 518, 247 S.W.3d 851 (2007). As the
party challenging the legislation, it is the Board’s burden to prove its unconstitutionality,
and all doubts will be resolved in favor of the statute’s constitutionality, if it is possible to do
so. Rose v. Ark. State Plant Bd., 363 Ark. 281, 213 S.W.3d 607 (2005). An act will be struck
down only when there is a clear incompatibility between the act and the constitution. Id.
D. Analysis
The key question on appeal is whether there is a clear incompatibility between
section 11-4-218 and article 5, section 20 of the Arkansas Constitution. We conclude that
there is a clear incompatibility between section 11-4-218(e) and our state constitution.
In the case at bar, the circuit court relied in its letter order on Jacoby v. Arkansas
Department of Education, 331 Ark. 508, 962 S.W.2d 773 (1998), in denying RMCC’s motion
to dismiss. In Jacoby, employees of the Arkansas Department of Education filed suit against
the department in state court alleging violations of the FLSA and claiming that the
department failed to pay them. The department moved to dismiss for lack of subject-matter
jurisdiction, arguing that Congress could not abrogate the Eleventh Amendment guarantee
of sovereign immunity. The circuit court granted the motion to dismiss on sovereign-
9
immunity grounds, but we reversed and remanded, holding that the Eleventh Amendment
did not provide the State with sovereign immunity from FLSA claims in state courts. Id.,
962 S.W.2d 773.
The Supreme Court of the United States, in Alden v. Maine, 527 U.S. 706 (1999),
abrogated Jacoby. In Alden, a group of probation officers in Maine filed suit against their
employer, the State, alleging that the State violated provisions of the FLSA. The lower
federal and state courts dismissed based on sovereign immunity. The Supreme Court granted
certiorari and recognized that the Maine Supreme Judicial Court’s opinion conflicted with
this court’s Jacoby opinion. The Court held that Congress cannot subject a State to an action
in state court without its consent. Id. at 758.
We reverse the circuit court’s ruling for the following reasons. First, this appeal
involves a question of state constitutional law. In Jacoby, this court applied federal
constitutional law to a federal statute. Jacoby does not apply to the case at bar. The present
case concerns our interpretation of the validity of section 11-4-218(e) vis-à-vis article 5,
section 20 of the Arkansas Constitution. Thus, the circuit court’s reliance on Jacoby was in
error.
Second, we acknowledge that the General Assembly enacted the AMWA and
allowed “an action for equitable and monetary relief against [the State].” Ark. Code Ann. §
11-4-218(e). Nevertheless, we conclude that the legislative waiver of sovereign immunity
in section 11-4-218(e) is repugnant to article 5, section 20 of the Arkansas Constitution. In
reaching this conclusion, we 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
10
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. The
people of the state of Arkansas approved this change when ratifying the current constitution.
The General Assembly does not have the power to override a constitutional provision. To
the extent section 11-4-218(e) directly contradicts the constitution, it must fail.
Third, under the doctrine of stare decisis, we cannot ignore six decades of this court’s
precedent prior to Staton. In Nelson Brothers, we stated,
The human element in legislatures and courts, following a natural impulse, abhors an
injustice perpetrated without a forum in which the right denied or the wrong suffered
may be asserted or redressed. Therefore, we find legislatures devising means for the
assertion of rights or the redress of wrongs even when the state is involved and the
courts are as sensitive to such impulse as the legislatures. On that account laws are
often enacted and decisions rendered to effectuate abstract justice, but which on no
just grounds can be sustained except by unsound or specious reason. An apt
illustration of this is found in the cases which we have reviewed. It is with reluctance
that we have undertaken this review, but we are impelled by the conviction that
these decisions are wrong. We realize that the overruling of a decision has a tendency
to render the laws of the state less certain. In this case, however, to adhere to our
former decisions would be, as we conceive it, nothing short of judicial usurpation. It
is our settled conviction that the state cannot give its consent to the maintenance of
an action against it and the court below was without jurisdiction. No one has a vested
right to sue the state even when that privilege may be, and has been, given; it may
be withdrawn even where a suit has been commenced without disturbing any vested
right. Beers, Use of Platenius v. State of Arkansas, 20 How. 527, 15 L. Ed. 991. “The
plaintiff cannot complain because the court overrules its former decision, even
though that decision permitted the plaintiff to maintain its suit similar to the one
now before us.” Pitcock v. State, [91 Ark. 527, 121 S.W. 742 (1909)].
Nelson Bros., 191 Ark. at 636–37, 87 S.W.2d at 397. We conclude that Nelson Brothers,
Fairbanks, and Arkansas Department of Human Services are the correct precedent for this court
to follow in its conclusion that the General Assembly cannot waive the State’s immunity
11
pursuant to article 5, section 20. To the extent that other cases conflict with this holding,
we overrule those opinions.
Further, this court has held that suits subjecting the State to financial liability are
barred by sovereign immunity and that plaintiffs like Andrews with these causes of actions
have a “proper avenue for redress against State action, which is to file a claim with the
Arkansas Claims Commission.” Univ. of Ark. for Med. Scis. v. Adams, 354 Ark. 21, 25, 117
S.W.3d 588, 591 (2003); see also Ark. Const. Art. 2, § 13 (stating that “[e]very person is
entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his
person, property or character”).
III. Additional Arguments
Andrews raises additional arguments that (1) article 2 trumps article 5, and thus the
State must be answerable in court to claims at law for violations of the AMWA, and (2) any
application of sovereign immunity has been waived.
We do not address these arguments. Here, the circuit court did not specifically rule
on these issues in either its letter order or its final order. This court has been clear that it
will not presume a ruling from the circuit court’s silence, and we have held that we will not
review a matter on which the circuit court has not ruled. Alpha Mktg., 2012 Ark. 23, 386
S.W.3d 400.
IV. Conclusion
For the foregoing reasons, we hold that the circuit court erred as a matter of law in
denying the Board’s motion to dismiss because it lacked jurisdiction over Andrews’s AMWA
claim pursuant to the doctrine of sovereign immunity. Accordingly, we reverse and dismiss.
12
See, e.g., Burcham, 2014 Ark. 61 (reversing and dismissing because a sovereign-immunity
waiver did not apply).
Reversed and dismissed.
Special Justice CHAD PEKRON joins in this opinion.
BAKER and HART, JJ., dissent.
GOODSON, J., not participating.
KAREN R. BAKER, Justice, dissenting. I must dissent from the majority’s decision
to hold that the legislative waiver of sovereign immunity found in the Arkansas Minimum
Wage Act is unconstitutional. The majority’s opinion is patently flawed for several reasons.
First, the majority’s holding yields the untenable position that while private
employers are required to pay their employees minimum wage, the State may forgo paying
its employees the required minimum wage. By way of example, when an act is passed by
the legislature or more specifically, when the citizens of Arkansas pass an act to increase the
minimum wage, pursuant to the act, private employers are required to compensate their
employees in compliance with the act. However, as a result of the majority’s holding, the
Minimum Wage Act is no longer applicable to the State. Thus, if the State pays its
employees below the required minimum wage threshold, State employees will have no
available recourse because there is no longer a right to enforce the Act against the State.
Second, the majority opinion appears to attempt to limit its holding to only legislative
waivers of sovereign immunity; however, its holding is much more far-reaching. Article 5,
section 20 states that “[t]he State of Arkansas shall never be made defendant in any of her
courts.” Ark. Const. art. 5, § 20. (emphasis added). The word “made” is the past participle
13
of the word “make.” Merriam-Webster’s Collegiate Dictionary (9th ed.) (1991). Webster’s lists
twenty-five definitions for the word “make.” One of these definitions is to “to cause to be
or cause to become.” Another definition is “to cause to act in a certain way: compel.” I
submit that the drafters of the constitution intended for “made” to mean the latter, to
“compel.” Any other interpretation of “made” would render any waiver of sovereign
immunity—by the executive, legislative or judicial branch—impossible. Thus, we could
not hold that the State waives sovereign immunity: by the executive branch, through the
attorney general seeking relief or by bringing suit; by a legislative act; or by the judicial
branch through postconviction rules. However, if the word “made” means to compel, then
the State can allow itself to be sued in those situations. Further, the majority’s attempt to
limit its holding to money judgments is disingenuous to the literal text of article 5, section
20. If the majority is holding that “made” means to “cause to become,” then the text of
article 5, section 20 should be read to mean that the State cannot be caused to be a defendant
in any of her courts. Absent from our constitution is any language limiting sovereign
immunity to money judgments. The majority’s holding that the legislature may no longer
waive sovereign immunity, necessarily means that the executive and judicial branches
likewise may not waive sovereign immunity because any other interpretation would result
in treating the legislature differently from the executive and judicial branches. For each
branch to operate as envisioned by the constitution, one branch must not be subordinated
to either or both of the other branches, and one branch must not take control of one or
both of the other branches. City of Lowell v. M & N Mobile Home Park, Inc., 323 Ark. 332,
916 S.W.2d 95 (1996).
14
Third, the majority declines to address Andrews’s arguments regarding article 2
because the circuit court failed to specifically rule on this issue. However, the Arkansas
Constitution must be considered as whole, and every provision must be read in light of
other provisions relating to the same subject matter. Gatzke v. Weiss, 375 Ark. 207, 289
S.W.3d 455 (2008) (citing Foster v. Jefferson Cty. Quorum Ct., 321 Ark. 105, 901 S.W.2d
809 (1995)). Because of the majority’s holding, specific sections of article 2 now conflict
with article 5. Section 1 governs the authority of the government and states that “[a]ll
political power is inherent in the people and government is instituted for their protection,
security and benefit; and they have the right to alter, reform or abolish the same, in such
manner as they may think proper.” Ark. Const. art. 2, § 1. Section 7 governs the right to
a trial by jury and states that “[t]he right of trial by jury shall remain inviolate, and shall
extend to all cases at law, without regard to the amount in controversy; but a jury trial may
be waived by the parties in all cases in the manner prescribed by law[.]” Id. § 7. See Tilley
v. Malvern Nat’l Bank, 2017 Ark. 343. Section 13 states that “[e]very person is entitled to a
certain remedy in the laws for all injuries or wrongs he may receive in his person, property
or character; he ought to obtain justice freely, and without purchase; completely, and
without denial; promptly and without delay; conformably to the laws.” Id. § 13. Section
29 states that “[t]his enumeration of rights shall not be construed to deny or disparage others
retained by the people; and to guard against any encroachments on the rights herein
retained, or any transgression of any of the higher powers herein delegated, we declare that
everything in this article is excepted out of the general powers of the government; and shall
forever remain inviolate; and that all laws contrary thereto, or to the other provisions herein
15
contained, shall be void.” Id. § 29. However, because of the manner in which the majority
has interpreted article 5, the holding clearly violates the above-cited article 2 provisions.
Fourth, after citing the 1874 constitution, the majority states, “Subsequently, in
1935, this court considered the issue of whether the legislature could waive the State’s
sovereign immunity. See Ark. Hwy. Comm’n v. Nelson Bros. 191 Ark. 629, 87 S.W.2d 394
(1935). This court stated, ‘It is our settled conviction that the state cannot give its consent
to the maintenance of an action against it.’” The majority implies that this was the first
post-1874 case in which it considered the issue of sovereign immunity. However, when
presented with this issue in 1932, this court allowed the suits to proceed since two justices
believed the suits were not against the State and two believed the State could consent to be
sued. See L. Scott Stafford, Separation of Powers and Arkansas Administrative Agencies:
Distinguishing Judicial and Legislative Power, U. Ark. Little Rock L. Rev. 279 (1984). In
Arkansas Highway Commission v. Dodge, the court explained:
It will be seen that out of the conflicting views of a majority of the several members
of the court a very definite result has been reached; i.e., that in a proper case the
highway commission may be sued when authority for the bringing of the suit may
be found in the statute . . . we now hold that, in all cases where the statute authorizes
a suit, it may be maintained against the highway commission whether it be thought
to be a juristic person or whether section 20, art. 5, be merely declaratory of the
general doctrine that the state may not be sued in her courts unless she has consented
thereto.
186 Ark. 640, 133–34, 55 S.W.2d 71, 73 (1932), overruled in part by Ark. Hwy. Comm’n v.
Nelson Bros., 191 Ark. 629, 87 S.W.2d 394 (1935). Thus, subsequent to the adoption of
our current constitution, the doctrine of sovereign immunity has been interpreted at least
three different ways.
16
Fifth, the majority states that “under the doctrine of stare decisis, we cannot ignore
six decades of this court’s precedent prior to Staton.” However, the same can be said with
regard to our over twenty years of precedent set forth in Staton and Tedder. In Chamberlin
v. State Farm Mutual Auto Insurance Company, 343 Ark. 392, 36 S.W.3d 281 (2001), this
court described the dictates of stare decisis as follows:
Under the doctrine of stare decisis, we are bound to follow prior case law. The policy
of stare decisis is designed to lend predictability and stability to the law. It is well-
settled that “[p]recedent governs until it gives a result so patently wrong, so manifestly
unjust, that a break becomes unavoidable.” Our test is whether adherence to the rule
would result in “great injury or injustice.”
(Internal citations omitted.) Pursuant to Chamberlain, the majority has failed to demonstrate
that our precedent set forth in Staton is “patently wrong” or “manifestly unjust.” Instead,
the majority’s decision, in a perfunctory fashion, overhauls over twenty years of our well-
established law on sovereign immunity and has effectively revived the antiquated doctrine
that “the king can do no wrong.”2 By focusing solely on Staton and Tedder, the majority’s
2
Since Staton and Tedder, we have consistently recognized an exception to the
doctrine of sovereign immunity where an act of the legislature has created a specific waiver
of immunity. See Ark. State Med. Bd. v. Byers, 2017 Ark. 213, 521 S.W.3d 459; Lenard v.
Kelley, 2017 Ark. 186, 519 S.W.3d 682; Ark. State Police Ret. Sys. v. Sligh, 2017 Ark. 109,
516 S.W.3d 241; Kelley v. Johnson, 2016 Ark. 268, 496 S.W.3d 346; Johnson v. Butler, 2016
Ark. 253, 494 S.W.3d 412; Duit Constr. Co., Inc. v. Ark. State Claims Comm’n, 2015 Ark.
462, 476 S.W.3d 791; Ark. Dep’t of Human Servs. v. Fort Smith Sch. Dist., 2015 Ark. 81, 455
S.W.3d 294; Smith v. Daniel, 2014 Ark. 519, 452 S.W.3d 575; Ark. State Claims Comm’n v.
Duit Constr. Co., Inc., 2014 Ark. 432, 445 S.W.3d 496; Crossno v. Felts, 2014 Ark. 262 (per
curiam); DuBois v. Hobbs, 2014 Ark. 259 (per curiam); Mitchem v. Hobbs, 2014 Ark. 233 (per
curiam); Bd. of Trs. v. Burcham, 2014 Ark. 61; Kiesling-Daugherty v. State, 2013 Ark. 281;
Ark. Lottery Comm’n v. Alpha Mktg., 2013 Ark. 232, 428 S.W.3d 415; Ark. Dep’t of Cmty.
Corr. v. City of Pine Bluff, 2013 Ark. 36, 425 S.W.3d 731; Ark Game & Fish Comm’n v.
Eddings, 2011 Ark. 47, 378 S.W.3d 694; Ark Dep’t of Envtl. Quality v. Al-Madhoun, 374 Ark.
28, 285 S.W.3d 654 (2008); Jones v. Flowers, 373 Ark. 213, 283 S.W.3d 551 (2008); Weiss
v. McLemore, 371 Ark. 538, 268 S.W.3d 897 (2007); Simons v. Marshall, 369 Ark. 447, 451,
255 S.W.3d 838, 841 (2007); Ark Dep’t of Human Servs. v. T.B., 347 Ark. 593, 67 S.W.3d
17
opinion ignores the breadth of its decision and leaves the state of law on sovereign immunity
in complete disarray. The implications of its holding are astounding and call into question
other established precedent. See Lake View Sch. Dist. No. 25 of Phillips Cty. v. Huckabee, 340
Ark. 481, 10 S.W.3d 892 (2000) (holding that the State, through the executive branch,
waived sovereign immunity when it signed off on two published notices to the class
members advocating attorneys’ fees); Ark. Dep’t of Human Servs. v. R.P., 333 Ark. 516, 970
S.W.2d 225 (1998) (holding that the General Assembly waived the Department’s sovereign
immunity as to providing family services in child-welfare proceedings). The following list
includes, but is not limited to, the specific types of actions that the majority’s decision calls
into question when the suit is filed against the State of Arkansas:
• Arkansas Minimum Wage Act
• Arkansas Whistle Blower’s Act
• Post-conviction cases
• Land-condemnation cases
• Illegal-exaction cases
• Suits against State owned hospitals
• Freedom of Information Act
• Suits filed against DHS, including dependency-neglect cases
As discussed above, the majority’s opinion transforms the State to king-like status and
makes “the king can do no wrong” theory absolute. However, even under that theory, the
539 (2002); Short v. Westark Cmty. Coll., 347 Ark. 497, 65 S.W.3d 440 (2002); State v. Goss,
344 Ark. 523, 42 S.W.3d 440 (2001); Ark. Pub. Def. Comm’n v. Greene Cty. Cir. Ct., 343
Ark. 49, 32 S.W.3d 470 (2000); Milberg, Weiss, Bershad, Hynes & Lerach, LLP v. State, 342
Ark. 303, 28 S.W.3d 842 (2000); Ark. Pub. Def. Comm’n v. Burnett, 340 Ark. 233, 12
S.W.3d 191 (2000); Ark. Dep’t of Human Servs. v. R.P., 333 Ark. 516, 970 S.W.2d 225
(1998); Office of Child Support Enft. v. Mitchell, 330 Ark. 338, 954 S.W.2d 907 (1997); Cross
v. Ark. Livestock & Poultry Comm’n, 328 Ark. 255, 943 S.W.2d 230 (1997).
18
law has always recognized the sovereign’s right to submit to suit. This court, for over twenty
years, has recognized that the sovereign may waive its immunity and submit to suit. I would
follow our precedent and I would hold that the General Assembly’s abrogation of sovereign
immunity found in Arkansas Code Annotated section 11-4-218 is constitutional.
HART, J., joins.
David A. Curran, Associate General Counsel, University of Arkansas System, for
appellant.
Sanford Law Firm, PLLC, by: Josh Sanford, for appellee.
Leslie Rutledge, Attorney General, by: Lee Rudofsky, Arkansas Solicitor General;
Nicholas J. Bronni, Arkansas Deputy Solicitor General; and Delena C. Hurst, Assistant
Attorney General, counsel for amicus curiae in support of appellant.
19