concurring.
I agree with the court’s decision to affirm the trial court. I agree that the University is an instrumentality of the State and that is, in my opinion, fairly well settled. But I write separately because I answer the sovereign-immunity question differently, for the following reasons.
The University concedes that it is entitled to sovereign immunity from ad valorem taxes under Ark. Const. art. 16, § 5 only if the property is “held for a public purpose.” lisTherefore, I believe the narrow and specific issue presented in this unique case of limited implied sovereign immunity under art. 16, § 5 turns on this question: Are the University’s parcels in question held for a public purpose?
First, I believe it is important to clarify the type of sovereign immunity at issue. To the extent there is a limited implied sovereign immunity from ad valorem taxes under art. 16, § 5, it is, in my opinion, different and not as strong as the express sovereign immunity from suit found at Ark. Const. art. 5, § 20. This court has so recognized a distinction between the two, insofar as it relates to appellate jurisdiction, in another recent case brought by the University. See Bd. of Trustees v. Pulaski Cty., 2013 Ark. 230, 2013 WL 2382600. In Pulaski County, the University made the same argument it makes in this case with regard to ad valorem taxes imposed by Pulaski County on certain parcels of property at UAMS. In that case, the trial court denied the University’s motion for summary judgment and the University attempted an interlocutory appeal. This court dismissed the appeal for lack of jurisdiction because this court held immunity from suit is different from the immunity from ad valorem taxes as asserted by the University in Pulaski County (and now again in this case). I agree with that distinction, not only for purposes of appellate jurisdiction, but substantively as well. Therefore, in my opinion, this Court’s vast body of case law applying a “rigid” analysis to the express sovereign immunity from suit that originates from art. 20, § 5 (see, e.g., Short v. Westark Cmty. College, 347 Ark. 497, 504, 65 S.W.3d 440, 445 (2002)), is not applicable in this case where the University asserts a limited implied sovereign immunity from paying an ad valorem tax which originates, according to the University, from art. 16, § 5.
| HjSecond, if we are dealing with a different type of sovereign immunity, then how is it different? The majority begins its analysis with a discussion of the State’s sovereignty and the State’s power to delegate the power to tax. I do not necessarily disagree with those general fundamental principles of government. There is no question that the State generally has the power to tax, it may delegate that power to the counties and other local governments, and that it has so delegated to the counties the power to impose ad valorem taxes. But there is also equally no question that, in 1958, the voters of this State prohibited the State from imposing any ad valorem tax at the state level. See Ark. Const. amend 47. This raises in my mind a curious question: If the State has no power to impose an ad valorem tax on its own, and the counties clearly do, then what sovereign immunity, if any, can the State assert as a defense to paying the ad valo-rem tax imposed by the counties on property held by the State? In my opinion, it is a very limited implied sovereign immunity because, at the end of the day, the State still has the power to delegate to (or take away from) the counties the power to impose the ad valorem tax. And, I do agree with the majority that the Arkansas, legislature has not yet expressly waived or abrogated the State’s limited implied sovereign immunity from paying ad valorem taxes imposed by the counties (although I acknowledge that the legislature certainly could do so if it so desired).
Third, I believe the University’s argument is too broad, but I also believe the Fayetteville appellants’ argument is too narrow. I do not read art. 16, § 5(a) and (b) as separate and distinct provisions like the University does. Nor am I convinced that this Court’s dicta in School District of Ft. Smith v. Howe, 62 Ark. 481, 37 S.W. 717 (1896) | ^conclusively determines that the more onerous public-property exemption under art. 16, § 5(b), requiring “exclusive use” for a public purpose, never applies to property owned by the State. If that were the case, then why would the University assert both art. 16, § 5(a) sovereign immunity and art. 16, § 5(b) exclusive-use-exemption defenses to all of its parcels in this case (and I note in the Pulaski County case too). It seems to me that the University, rightly so, first argued limited implied sovereign immunity, but was prepared to argue the éxclusive-use exemption in the alternative if necessary. Further, in Arkansas Teacher Retirement System v. Short, 2011 Ark. 263, 381 S.W.3d 834, this court specifically decided whether the art. 16, § 5(b) exemption would apply to an instrumentality of the State. Likewise, the Arkansas legislature has specifically utilized the art. 16, § 5(b) exemption language by stating that all property owned by the Arkansas State Highway Commission or the Arkansas State Highway and Transportation Department is “public property used exclusively for public purposes” and, therefore, “neither the commission nor the department pursuant to Arkansas Constitution, Article 16, § 5, is required to pay real or personal property taxes on real estate and tangible personal property owned by that commission or department — ” See Ark. Code Ann. § 26-3-308(a) (Repl. 2012). Moreover, the Arkansas Assessment Coordination Department itself has stated that “all property” is “subject to” .the ad valorem tax unless it is exempt under 5(b) or another applicable exemption. See Frequently Asked Questions, Arkansas Assessment Coordination Department (Second Revision June 14, 2012) (“1. What property in this state is subject to taxation? All property that is not exempt under the constitution, ACA 26-3-201. Property that is exempt under the Arkansas Constitution is: (1) public property | isused exclusively for public purposes.... ”). Taken to its logical extreme, the University’s argument might mean that the University is immune from paying any local tax, whether it be a tax on real property, a tax on personal property, a sales tax, and the like. Surely that is not the law.
But I also do not read art. 16, § 5 as strictly as the Fayetteville appellants do, that there simply is no limited implied sovereign immunity from ad valorem taxes and the “exclusive use” test under § 5(b) is the University’s only possible defense. Even - if. the “exclusive use” test from § 5(b) is. not the issue before the court (and I agree with the majority that it is not), there still- must be some requirement and some evidence that the property is held by the University for a public purpose for the limited sovereign immunity to apply, as, the. University has conceded. If that were not required, then the University (and any .other instrumentality of the State) would be allowed to hold property for any purpose and remain, completely immune from ad' valorem taxes. Surely that is not the law either.
The University argues, and the majority concludes, that 'Short is irrelevant to this case because' Short was limited to the exclusive-use exemption under § 5(b). To the contrary, "I believe Short is very instructive in this case. First, the University and the- majority say that sovereign immunity was-not raised in the Short case. That may be true, but the question is why was it not raised? I do not presume that the learned counsel in Short missed the issue or that sovereign immunity would have applied even if it had been raised. Second, if sovereign immunity had been raised in Short, the University argued to the trial court below, and I agree that Short is factually distinct from the present case because the parcels in Short were clearly 113held (or, in that case, leased) for a private purpose. Thus, as the University conceded to the trial court below, the limited implied sovereign immunity in art. 16, § 5(a) would not have applied in Short, which could very likely be a reason why it was not raised.
This brings me to my primary concern with the scope the of majority’s opinion. The majority assumes that any property held by the State or its instrumentalities (like the University) is held for- a public purpose without.requiring any inquiry into the property’s purpose and, thus; the State and its instrumentalities would always be entitled to sovereign immunity from ad valorem taxes on any parcels held regardless" of the purpose. I do not read the limited implied-sovereign-immunity in art. 16, § 5 that broadly. In my opinion, the limited implied sovereign immunity analysis in this unique case hinges upon whether the University’s parcels are held for a public purpose. Therefore, the converse is also true — if the parcels are not held for a public purpose, then the University is not entitled to the limited implied sovereign immunity.
Fourth, there is another wrinkle to this case. The University argues, correctly in my opinion, that, pursuant to Ark. Const. art. 14, § 2, property held by the University is presumed to have a public purpose. While that may be true, that public-purpose presumption can be rebutted, and sovereign immunity destroyed, with certain facts as in Short, which the University admitted to the trial court below: “Of course, if the property itself is taken beyond what was contemplated is used for a sovereign, I don’t know how that 'would be inconsistent with the position that we read as we went through each one of these cases where we’re talking about state property held for a public purpose.” (emphasis added).
[ 2pFifth, are the University’s parcels in this case held for a public purpose? The University says yes, while the Fayetteville appellants say no, which would suggest a disputed issue of fact. But I agree with the majority that there are no disputed issues of material fact .for these reasons.
The simple fact that-the property is titled in the Board’s name is, in my opinion, insufficient evidence by itself that the parcels are held for a public purpose. However, the additional evidence. in this case, limited to the parcels in question, sufficiently demonstrates in my opinion that the purposes of those parcels are the University's book store and the University’s green space (which might be used for future University development).
The tax assessor’s affidavit is insufficient evidence, in my opinion, to rebut the constitutional presumption and destroy the University’s limited implied sovereign immunity from ad valorem taxes under Art. 16, § 5. Further, the affidavit is, in my opinion, eonclusory and speculative. The tax assessor does not explain his conjecture that the book store “appeared to be purely a profit-making venture” or his conclusion and “belief that none of the parcels of real property which are the subject of this action [are] held for a public purpose.” Thus, in my opinion, such evidence cannot preclude summary judgment to the University on its limited implied-sovereign-immunity .argument. It is well settled that speculation and conjecture, alone cannot prevent summary judgment. See Ark. R. Civ. P. 56(e); Browning v. Browning, 319 Ark. 205, 890 S.W.2d 273 (1995) (conjecture about rope’s condition not sufficiently probative to avoid summary judgment). On this record, and for these parcels, summary judgment to the University was appropriate because the admissible and 12¶undisputed material evidence sufficiently established that the parcels were held for a public purpose.
However, had the trial court been -presented with different facts (e.g., if there had been factual admissible evidence that the purpose of the property truly was a private purpose as was the case in- Short), then perhaps the constitutional presumption of a public purpose could be rebutted, the limited implied sovereign immunity under art. 16, § 5 could be destroyed, and the result perhaps could be different (as may or may not be the case for the University’s non-suited parcels in this case or its other real and personal property in this State). But those facts are not before this court.
Finally, the Fayetteville appellants argue that not being allowed to impose the ad valorem tax on the University’s parcels in question is unfair and inequitable because, for example, the University and its employees- and students benefit from the services provided by the county and the school district. I do not necessarily disagree with that argument, but I make, two observations. First, I agree with the majority and. underscore .that this decision,is limited to the parcels before the court. This decision does not apply to, all of the University’s real and personal. property. Second, the Fayetteville appellants’ argument raises a policy .matter for the Arkansas legislature to address (if it so desires), not this court. Some states have legislatively addressed the alleged inequity of a state’s sovereign immunity from ad valo-rem taxes in a variety' of’ways for many years. See, e.g., Compensating Local Governments for Loss of Tax Base Due to State Ownership of Land (New York State Department of Taxation & Finance September 1996) (50-state survey of various methods used by states to compensate local I ^governments for tax-base reduction due to state ownership of land). The Fay-etteville appellants’ argument might be directed to their state representativés, but it has no bearing on this case.
For these reasons, I concur in the decision to affirm the trial, court’s decision granting summary judgment to the University.