JOHN THURSTON, in His Official Capacity as Secretary of State of the State of Arkansas SHARON BRoOKS Bilenda Harris-Ritter WILLIAM LUTHER CHARLES ROBERTS JAMES SHARP And J. HARMON SMITH, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE ARKANSAS STATE BOARD OF ELECTION COMMISSIONERS v. THE LEAGUE OF WOMEN VOTERS OF ARKANSAS ARKANSAS UNITED DORTHA DUNLAP LEON KAPLAN NELL MATTHEWS MOCK JEFFERY RUST AND PATSY WATKINS

Cite as 2022 Ark. 32
SUPREME COURT OF ARKANSAS
No. CV-21-581

Opinion Delivered: February 17, 2022

JOHN THURSTON, IN HIS OFFICIAL
CAPACITY AS SECRETARY OF STATE
OF THE STATE OF ARKANSAS; APPEAL FROM THE PULASKI
SHARON BROOKS; BILENDA HARRIS- COUNTY CIRCUIT COURT
RITTER; WILLIAM LUTHER; [NO. 60CV-21-3138]
CHARLES ROBERTS; JAMES SHARP;
AND J. HARMON SMITH, IN THEIR HONORABLE WENDELL L. GRIFFEN,
OFFICIAL CAPACITIES AS MEMBERS JUDGE
OF THE ARKANSAS STATE BOARD
OF ELECTION COMMISSIONERS
APPELLANTS AFFIRMED.

V.

THE LEAGUE OF WOMEN VOTERS
OF ARKANSAS; ARKANSAS UNITED;
DORTHA DUNLAP; LEON KAPLAN;
NELL MATTHEWS MOCK; JEFFERY
RUST; AND PATSY WATKINS
APPELLEES

KAREN R. BAKER, Associate Justice

Appellees, the League of Women Voters of Arkansas and Arkansas United, Dortha

Dunlap, Leon Kaplan, Nell Matthews Mock, Jeffery Rust, and Patsy Watkins (“the League”)

filed suit against appellants John Thurston, in his official capacity as the Secretary of State

of the State of Arkansas; and Sharon Brooks, Bilenda Harris-Ritter, William Luther, Charles

Roberts, James Sharp, and J. Harmon Smith, in their official capacities as members of the
Arkansas State Board of Election Commissioners (“Thurston”) alleging that four acts passed

by the 93rd Session of the Arkansas General Assembly were unconstitutional––Act 736, Act

973, Act 249, and Act 728. The League refers to the acts as the “Absentee Application

Signature Match Requirement,” the “In-Person Ballot Receipt Deadline,” the “Voter ID

Affidavit Prohibition,” and the “Voter Support Ban,” respectively. Thurston moved to

dismiss based on sovereign immunity. The circuit court denied the motion. Pursuant to

Arkansas Rule of Appellate Procedure–Civil 2(a)(10) (2021), Thurston filed this appeal,

which permits an interlocutory appeal from “an order denying a motion to dismiss . . . based

on the defense of sovereign immunity or the immunity of a government official.” See Ark.

R. App. P.–Civ. 2(a)(10); City of Little Rock v. Dayong Yang, 2017 Ark. 18, at 4, 509 S.W.3d

632, 634 (internal citations omitted) (“[W]e do not hear on appeal any issue other than

whether the circuit court erred in denying summary judgment on the issue of immunity.”).

We affirm.

On May 19 and July 1, 2021, the League filed its complaint and its amended

complaint for injunctive and declaratory relief alleging that the four acts violate various

provisions of the Arkansas Constitution. Specifically, the League alleged that Act 736 makes

it substantially harder for voters to obtain an absentee ballot by making the signature-

matching process more unreliable and error-prone, thereby disenfranchising voters properly

entitled to absentee ballots. With regard to Act 973, the League alleged that the Act

unjustifiably shortened the deadline for voters to return absentee ballots in person, thereby

disenfranchising voters without reasonable justification. The League further alleged that Act

2
249 enacted a strict voter-identification requirement and eliminated the “Affidavit-Fail Safe”

written affirmation for voters who lacked an accepted form of voter identification, thereby

disenfranchising voters who do not have acceptable voter identification. Last, the League

alleged that Act 728 restricts the expressive activities of nonprofit nonpartisan groups and

criminalizes entering an area within 100 feet of a polling place unless the person is entering

or leaving the building where voting is taking place for lawful purposes. The League alleged

that Act 728 is unnecessarily vague and impedes nonpartisan voter-support activities by

excluding nonvoting caretakers, friends, and family from providing support to voters waiting

in line. The League alleged that these four Acts violate the following provisions of the

Arkansas Constitution: article 2 sections 3, 4, and 6; article 3 sections 1 and 2; amend. 51

section 19; the Free and Fair Election Clause; the Equal Protection Clause; the Voter

Qualification Clause, and the Free Speech and Assembly Clauses of the Arkansas

Constitution; and that the Affidavit Prohibition violates section 19 of amendment 51. The

League sought declaratory relief to declare the legislative Acts at issue unconstitutional and

to enjoin enforcement of the Acts.

On June 18 and July 20, 2021, pursuant to Rule 12(b)(6) of the Arkansas Rules of

Civil Procedure, Thurston filed a motion to dismiss and amended motion to dismiss

alleging, among other things, that Thurston was entitled to sovereign immunity. On October

1, 2021, the circuit court conducted a hearing. On November 1, the circuit court entered an

order finding that

3
 sovereign immunity does not bar [the League’s] claims. The Supreme Court has long
recognized an exception to the defense of sovereign immunity when the State is acting
illegally, unconstitutionally, or if a state agency officer refuses to do a purely
ministerial action required by statute. . . . [The League] allege[s] that the Challenged
Provisions are unconstitutional, satisfying the exception to sovereign immunity. . . .
Whether the validity of the challenged legislative enactments is governed by rational
basis or strict scrutiny review is a question of law that requires consideration of the
facts pertinent to the challenged enactments.

....

[The League] allege[s] that the Challenged Provisions burden their
fundamental rights to vote, speak, and assemble, and that strict scrutiny applies. . . .
The Amended Complaint alleges how [the League is] . . . burdened or impaired in
their exercise of their fundamental rights under the Challenged Provisions, that in
certain circumstances their fundamental rights and those of others who are similarly
situated will be outright denied, and the threat of harm is imminent. The
Amendment Complaint also alleges that [Thurston] lack[s] any compelling state
interest in the Challenged Provisions, and that they are not the least restrictive
method available to carry out any such interests. Because these are questions of fact,
the issue of which legal standard applies is not ripe for determination and will be
addressed when the case is considered with the merits. However, the court holds that
the amended complaint contains sufficient factual allegations to withstand dismissal
at this stage as to those assertions.

From that order, Thurston filed the instant timely interlocutory appeal. On

December 15, 2021, we granted Thurston’s motion to expedite his appeal. For reversal,

Thurston presents three points: (1) Thurston is entitled to sovereign immunity; (2) the

applicable standard to assess the Acts is rational basis; and (3) the Acts are constitutional.

This appeal stems from the circuit court’s denial of Thurston’s motion to dismiss.

“When reviewing a circuit court’s order granting [or denying] 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. Wade v. Ferguson, 2009 Ark. 618, at 2, 2009 WL 4723356. ‘In testing the sufficiency

4
of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of

the complaint, and all pleadings are to be liberally construed. Id. When a complaint is

dismissed on a question of law, this court conducts a de novo review. State v. West, 2014 Ark.

174, 2014 WL 1515898; Fatpipe, Inc. v. State, 2012 Ark. 248, 410 S.W.3d 574.’ Steele [v.

Thurston], 2020 Ark. 320, at 4, 609 S.W.3d 357, 361. The standard of review for the granting

[or denying] of a motion to dismiss is whether the circuit court abused its discretion. Henson

v. Cradduck, 2020 Ark. 24, 593 S.W.3d 10.” Kimbrell v. Thurston, 2020 Ark. 392, at 5–6, 611

S.W.3d 186, 190. Further, “we look only to the allegations in the complaint and not to

matters outside the complaint. However, we treat only the facts alleged in the complaint as

true but not a plaintiff’s theories, speculation, or statutory interpretation.” Arkansas State

Plant Bd. v. McCarty, 2019 Ark. 214, at 5, 576 S.W.3d 473, 476 (internal citations omitted).

With these standards in mind, we turn to the issue before us. We note that although

Thurston has presented three points in this interlocutory appeal, the only issue we have

jurisdiction to review is whether Thurston is entitled to sovereign immunity. See Ark. R.

App. P.–Civ. 2(a)(10); Williams v. McCoy, 2018 Ark. 17, at 5, 535 S.W.3d 266, 269. Further,

the circuit court did not rule on the merits of this matter. Instead, it denied Thurston’s

motion to dismiss the League’s complaint and amended complaint, including denying his

motion to dismiss based on sovereign immunity, which is the sole basis of our jurisdiction

in this matter. Accordingly, the only issue before us is whether the circuit court erred when

it denied Thurston’s motion to dismiss based on sovereign immunity.

5
 On appeal, Thurston contends that he is entitled to sovereign immunity and that the

League has not pled sufficient facts to allege the unconstitutionality of the Acts at issue.

Thurston further asserts that the League has failed to plead sufficient facts upon which relief

could be granted against the challenged Acts and that Thurston is entitled to sovereign

immunity. Relying on Martin v. Haas, 2018 Ark. 283, 556 S.W.3d 509, the League responds

that the only analysis necessary to determine whether Thurston is entitled to the defense of

sovereign immunity is to determine whether the League sufficiently alleged a violation of

constitutional rights and only seeks equitable relief; if the League did sufficiently plead such,

then Thurston is not entitled to sovereign immunity.

In Haas, 2018 Ark. 283, 556 S.W.3d 509, Haas, a voter, filed a declaratory action

seeking a declaration that an act related to voter registration be declared unconstitutional

and enjoin enforcement of the act. On appeal, Martin, as Secretary of State, contended that

he was entitled to sovereign immunity. We held that sovereign immunity was not applicable.

We explained that although Martin raised sovereign immunity, “[b]ecause [Haas] has asserted

that Act 633 violates qualified voters’ constitutional right to vote and seeks declaratory and

injunctive relief, not money damages, this action is not subject to the asserted sovereign-

immunity defense.” Id. at 8, 556 S.W.3d at 515. Although we granted Haas no declaratory

or injunctive relief on his claims, we concluded that sovereign immunity did not provide a

basis for dismissal.

Here, as in Haas, the League has alleged that specific acts violate the Free and Fair

Election Clause; the Equal Protection Clause; the Voter Qualification Clause, and the Free

6
Speech and Assembly Clauses of the Arkansas Constitution; and that Act 249 additionally

violates section 19 of amendment 51 of the Arkansas Constitution. The relief sought by the

League, declaratory and injunctive relief regarding the alleged conflict between the Acts and

the Arkansas Constitution, is the same relief that was sought by Haas. Accordingly, here, as

in Haas, Thurston is not entitled to sovereign immunity. Therefore, we affirm the circuit

court’s order denying Thurston’s motion to dismiss based on sovereign immunity.

Affirmed.

WOOD, J., concurs.

WOMACK, J., dissents.

RHONDA K. WOOD, Justice, concurring. I write separately to address the importance

of interpreting the constitution according to its original meaning. Board of Trustees v. Andrews1

marked this court’s return to interpreting article 5, section 20 of the Arkansas Constitution

as the framers intended. The General Assembly lacks the power to override this provision,

which states, “The State of Arkansas shall never be made defendant in any of her courts.” 2

But following Andrews, the language “the State shall never be made a defendant” has been

plucked out of context and misinterpreted in a way that could strip our citizens of vital

constitutional protections. This provision, when properly understood, (i) limits money-

1
2018 Ark. 12, 535 S.W.3d 616.
2
Ark. Const. art. V, § 20.

7
damage claims against the State but (ii) allows declaratory and injunctive relief against state

officials who act illegally or unconstitutionally.

We should first look to the constitutional text. If uncertainty and ambiguity exist, we

can then consider the text according to its original meaning. The question raised here

involves how to define “the State” as described in article 5, section 20. 3 We have one clue

about the scope of “the State” in our caselaw about administrative appeals from agency

adjudications. We have allowed those appeals to proceed in the face of sovereign-immunity

challenges. Even though the agency was a state entity and was the named defendant in circuit

court, we held that the agency was really a tribunal or quasi-judicial decision maker.4 Article

5, section 20 did not consequently bar the “appeal.” No sitting justice disagrees with this

3
I disagree with the dissent that the critical interpretive point is the meaning of
“never” rather than “the State.” The dissent also cites numerous minority opinions from this
court and the U.S. Supreme Court to explain its sudden shift to sovereign-immunity
absolutism. Some of these citations don’t support the propositions for which they are cited;
for example, one case involved the interpretation of “qualified electors” and never discussed
sovereign immunity. Barrett v. Thurston, 2020 Ark. 36, at 13, 593 S.W.3d 1, 9 (Wood, J.,
dissenting). Other citations are self-refuting; for example, the dissent cites a case discussing
charitable immunity—an affirmative defense—to “prove” that sovereign immunity isn’t an
affirmative defense. Davis Nursing Ass’n v. Neal, 2019 Ark. 91, at 8, 570 S.W.3d 457, 462
(Wood, J., concurring); Seth v. St. Edward Mercy Med. Ctr., 375 Ark. 413, 417, 291 S.W.3d
179, 183 (“[C]haritable immunity is an affirmative defense that must be specifically pled.”).

4
Ark. Oil & Gas Comm’n v. Hurd, 2018 Ark. 397, at 11, 564 S.W.3d 248, 255.

8
view.5 Likewise, this court has unanimously allowed inmates to pursue civil complaints

against the State in the context of their incarceration.6

Nor does the provision bar claims against State officials who act illegally,

unconstitutionally, or ultra vires.7 These actions are not truly against the State, but against

rogue State officials whom the courts can enjoin. This is similar to the U.S. Supreme Court’s

doctrine that a lawsuit to enjoin a State official from taking unlawful action does not

implicate State sovereign immunity under the Eleventh Amendment because such an officer

is “stripped of his official or representative character” and may be “subjected . . . to the

consequences of his individual conduct.”8 In other words, a state official who acts unlawfully

does so “without the authority of . . . the state in its sovereign . . . capacity.” 9

The historical record provides other helpful guidance in determining the provision’s

original meaning. As we said in Andrews, before the 1874 Constitution, the General

Assembly had the power to pass laws authorizing citizens to sue the State of Arkansas for

5
E.g., Ark. Dep’t of Hum. Servs. v. Mitchell, 2021 Ark. 188 (affirming unanimously
agency decision based on substantial evidence rather than sovereign immunity).

6
E.g.¸ Muntaqim v. Hobbs, 2017 Ark. 97, at 4, 514 S.W.3d 464, 468 (requiring circuit
court to further consider a prisoner’s First Amendment claim against prison officials).
7
Martin v. Haas, 2018 Ark. 283, at 7, 556 S.W.3d 509, 514.

8
Ex parte Young, 209 U.S. 123, 159–60 (1908); see also 17A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 4231 (2019) (characterizing Ex parte Young
as “one of the three most important decisions the Supreme Court of the United States has
ever handed down,” alongside Marbury v. Madison and Martin v. Hunter’s Lessee).

9
Id.

9
monetary damages.10 But a dramatic shift happened between the Constitution of 1868 and

the current Constitution of 1874: the State’s citizens wanted to protect themselves from

government overreach and to protect an overspending government from itself. 11 These

concerns about excessive government power show that the original meaning of article 5,

section 20 was to prevent the legislature from enacting laws subjecting the State to financial

liability.

The 1874 Convention reflected the State’s perilous financial condition. The State

carried debt totaling approximately 20 million dollars.12 Taxes were at an all-time high.13

“Foremost in the minds of the delegates was the dangerous financial condition of the

State.”14 One of the first acts at the convention was to call for a report on the State’s finances,

and the delegates spent weeks focusing on financial issues.15 The changes between the 1868

Constitution and the 1874 Constitution reveal decision after decision to limit the

10
2018 Ark. 12, at 6, 535 S.W.3d at 620.

11
See generally Rodney Waymon Harris, Arkansas’s Divided Democracy: The
Making of the Constitution of 1874 (2017) (Graduate Theses and Dissertations), available
at http://scholarworks.uark.edu/etd/2446 [https://perma.cc/DLQ7-BBVK].

12
Id. at 62.

13
Walter Nunn, The Constitutional Convention of 1874, Arkansas Historical
Association, The Arkansas Historical Quarterly 177, 182 (Winter 1968).

14
Id. at 193

15
Id. at 194.

10
government’s ability to further financially strain the State. Some examples include the

prohibition on incurring debts and the “severe restraints on the taxing powers of both state

and local governments by imposing low maximum rates.” 16 Article 5, section 20 also

highlights these concerns about the State’s purse. The provision “almost certainly was a

reaction to the lawsuits filed over the years to collect” the State’s outstanding bond debt. 17

The 1874 Convention also took place when many were concerned with excessive

government power. “Opposition to centralization . . . became an overarching theme.”18 The

delegates at the 1874 Constitutional Convention “enable[d] people to exercise more direct

control over their elected officials.”19 Most scholars emphasize the shift from 1868 to 1874

as being “devoted to what the state and local governments” could not do. 20 Commentators

often call the 1874 Constitution the “thou shalt not” constitution.21 This constitution was

16
Ark. Const. art. XVI, § 1 (“Neither the State nor any city, county, town . . . shall
ever lend its credit . . . .”); Jeannie Whayne et al., Arkansas: A Narrative History 256 (2d ed.
2013); see also Nunn, supra note 12, at 194–200.
17
Mark H. Allison, Sovereign Immunity: Holford Bonds, the Brooks-Baxter War, and
the Constitutional Convention of 1874, Ark. Law., Winter 2019, at 44.

18
Harris, supra note 11, at 30.

19
Nunn, supra note 13, at 200.

20
Id. at 201.
21
Id.

11
designed to protect the people from overreach and “precluded . . . strong executive leadership

and activist government.”22

The Andrews decision fits perfectly within this textual and historical context. There,

the legislature had enacted the Arkansas Minimum Wage Act, allowing individuals to

recover monetary damages against the State. This court correctly found the Act to be an

impermissible legislative waiver.23 We said never means never and returned to prior case law

that did not allow such a waiver. We reached the same conclusion about the Arkansas

Whistle-Blower Act when the plaintiff there sued a State agency for money damages.24 Put

simply, article 5, section 20 insulates the State’s treasury from monetary claims—whether

sanctioned by the legislature or not.

The same week that this court decided Andrews, we also decided Williams v. McCoy, a

case where the plaintiff alleged state officials acted illegally.25 We did not extend the Andrews

holding but rather considered the case on the merits and whether the plaintiffs pled

sufficient facts. That the court decided two cases implicating the State as a defendant, with

different results based on the relief sought, speaks volumes. Since Andrews, this court has

22
Whayne, supra note 16, at 256.
23
2018 Ark 12, at 11, 535 S.W.3d at 622

24
Ark. Cmty. Correction v. Barnes, 2018 Ark. 122, at 3, 542 S.W.3d 841, 843.
25
2018 Ark. 17, 535 S.W.3d 266.

12
continually interpreted article 5, section 20 as allowing citizen-led claims against State

officials who act illegally or unconstitutionally. 26

And no historical document suggests the provision’s original meaning stripped power

from the people to hold their government officials accountable. Any such document would

be anomalous: the 1874 delegates wanted more citizen control over government––not less.

To now interpret the provision as handcuffing the people from seeking relief in state court

for other constitutional rights enshrined in the 1874 Constitution would upend that

document’s primary goal. And it is the people of Arkansas—not government bureaucrats—

who are truly sovereign under our constitution.27 Why would the people of Arkansas pass a

constitution that gave them individual liberty, freedom of speech, freedom of assembly, and

the right to bear arms, and at the same time destroy their ability to vindicate such rights in

state court? Article 5, section 20 cannot be elevated above these rights.

Consider the following factual scenario: during a state of emergency, members of the

executive branch issue interim orders aimed at curbing the emergency. But the orders plainly

contradict the Arkansas Constitution and statutory law. Sovereign-immunity absolutism

would bar citizens from filing lawsuits to enjoin the officials from enforcing these illegal

26
See, e.g., Martin v. Haas, supra; McCarty v. Ark. State Plant Bd., 2021 Ark. 105, 622
S.W.3d 162; Ark. Dep’t of Fin. & Admin. v. Carpenter Farms Med. Grp., LLC, 2020 Ark. 213,
601 S.W.3d 111; Ark. Dep’t of Hum. Servs. v. Ledgerwood, 2017 Ark. 308, 530 S.W.3d 336.
27
Ark. Const. art. II, § 1.

13
orders. Some might say the legislature can step in. 28 But even then, the legislature can’t

enforce its own laws—it has the power of the purse, not the power of contempt. The judicial

branch provides constitutional harmony and a forum for citizens to enforce their rights.

Sovereign-immunity absolutism would decimate the judicial branch and render Arkansas’s

separation-of-powers perilously asymmetrical. The framers would have abhorred this

imbalance.

The dissent responds with three points. None have merit. First, it argues that “never

means never,” that the majority has created unwritten exceptions, and that the constitutional

language is clear. But if so clear, why has the Arkansas Supreme Court debated its meaning

for over a hundred and fifty years? If so clear, why did the dissent admittedly write or join

opinions specifically stating the contrary?29 Second, the dissent contends sovereign-immunity

28
Ark. Const. art. V, § 42 (allowing legislative review of agency rules); Act 403 of 2021
(limiting scope of emergency orders).

29
While the dissent confesses error in a few cases, many more exist. See, e.g., Martin v.
Haas, 2018 Ark. at 7, 556 S.W.3d at 514 (joining majority opinion that held sovereign
immunity inapplicable when complaint sought declaratory and injunctive relief from an
illegal act); Steve’s Auto Ctr. of Conway, Inc. v. Ark. State Police, 2020 Ark. 58, at 4, 592 S.W.3d
695, 698 (same); Ark. Dev. Fin. Auth. v. Wiley, 2020 Ark. 395, at 4, 611 S.W.3d 493, 498
(same); Harris v. Hutchinson, 2020 Ark. 3, at 4, 591 S.W.3d 778, 781 (same); Ark. Game &
Fish Comm’n v. Heslep, 2019 Ark. 226, at 7–8, 577 S.W.3d 1, 6 (joining majority’s holding
that “claims for injunctive and declaratory relief are not necessarily barred by the doctrine of
sovereign immunity”); Monsanto Co. v. Ark. State Plant Bd., 2019 Ark. 194, at 9, 576 S.W.3d
8, 13 (joining majority’s holding that “the ultra vires exception is alive and well, and it applies
in this case”); Hutchinson v. McArty, 2020 Ark. 190, at 7, 600 S.W.3d 549, 553 (“We have
previously determined that sovereign immunity does not bar actions for declaratory or
injunctive relief.”) (Womack, J., dissenting).

14
implicates subject-matter jurisdiction and must be addressed before any other issue. If that’s

true, why did the dissent just last week affirm the dismissal of a lawsuit against a state district

court judge without ever confronting the “jurisdictional” issue of sovereign immunity?30 Last,

the dissent attacks the concurrence and the majority not with law, but with rhetoric and by

citing cases that tend to incite political discourse on a national level. But abortion and gay

marriage have nothing to do with state sovereign immunity. Objective observers will see this

ploy for what it is.

Neither the constitution’s text, history, nor its function prohibits citizen-led suits

against illegal state actors. These are no exceptions written into to the constitution; rather,

the constitutional provision is simply not applicable when the State is not acting as the State.

The dissent has also written majority opinions applying “exceptions” to sovereign
immunity. See, e.g., Harmon v. Payne, 2020 Ark. 17, at 4, 592 S.W.3d 619, 623 (acknowledging
ultra vires exception in prisoner lawsuit alleging cruel and unusual punishment); Muntaqim
v. Lay, 2019 Ark. 203, at 4–6, 575 S.W.3d 542, 546–47 (recognizing prison may restrict First
Amendment rights despite constitutional text that says “Congress shall make no law”);
Muntaqim v. Hobbs, 2017 Ark. at 5, 514 S.W.3d at 468 (reversing and remanding for
consideration whether prisoner’s First Amendment rights were violated). Indeed, the dissent
would have allowed affirmative relief or potential affirmative relief against state officials who
have acted unconstitutionally. See McCarty, 2021 Ark. 105, at 5–6, 622 S.W.3d at 165
(joining majority opinion ordering removal of members of Plant Board); Carpenter Farms,
2020 Ark. 213, at 20, 601 S.W.3d at 123 (joining majority opinion to the extent that it
allowed equal-protection claim against Medical Marijuana Commission) (Womack, J.,
concurring in part and dissenting in part); Ledgerwood, 2017 Ark. 308, at 15, 530 S.W.3d at
346 (joining opinion upholding TRO against Department of Human Services).

30
See Mahoney v. Derrick, 2022 Ark. 27 (holding that the affirmative defense of judicial
immunity protected a district judge of the 23rd district from suit); see also Ark. Code Ann. §
16-7-1110(18)(A) (designating the judges of the 23rd district as state district court judges).

15
My originalist interpretation adheres to the original intent to provide citizens with more

protection and to restrict governmental abuse. For the above reasons, I will continue to apply

the plain language and original meaning of the Arkansas Constitution and allow our citizens

to seek declaratory and injunctive relief when state officials act illegally.

SHAWN A. WOMACK, Justice, dissenting. What does it mean when the constitution

commands that something never happen? This court has read never as except for three

circumstances. See, e.g., Bd. of Trs. of Univ. of Ark. v. Andrews, 2018 Ark. 12, at 5, 535 S.W.3d

616, 619–20. There are few clearer commands in our constitution than article 5, section 20.

“The State of Arkansas shall never be made defendant in any of her courts” leaves no room

to read in any of the exceptions that this court has previously recognized. Ark. Const. art. 5,

§ 20 (emphasis added). Nowhere does the Arkansas Constitution contemplate an exception

to sovereign immunity for unconstitutional, illegal, or ultra vires acts; a conclusion otherwise

is purely this court’s attempt at crafting public policy for the State. Cf. Ark. Game & Fish

Comm’n v. Heslep, 2019 Ark. 226, at 8, 577 S.W.3d 1, 6.

A faithful interpretation of our constitution requires this court to recognize that the

State can never properly be before any of its courts as a defendant. Ark. Dev. Fin. Auth. v.

Wiley, 2020 Ark. 395, at 9, 611 S.W.3d 493, 500 (Baker, J., concurring). To the extent any

of our precedents hold otherwise, they clearly conflict with the unambiguous requirements

of our constitution. See Ark. Const. art. 5, § 20. The constitution’s use of the word “courts”

rather than the term “courts of equity” or “courts of law” bolsters this conclusion, as the

constitution originally permitted the division of equitable and legal remedies between courts.

16
Ark. Const. art. 7, §§ 1, 15, repealed by Ark. Const. amend. 80, § 22. A blanket prohibition

against the State being a defendant in any of its courts is fatal to the suggestion that there

are any exceptions, even for unconstitutional, illegal, or ultra vires acts. See Barrett v. Thurston,

2020 Ark. 36, at 13, 593 S.W.3d 1, 9 (Wood, J., concurring) (“Fundamental principles of

constitutional interpretation require us to read laws as they are written and to give words

their obvious and natural meaning.”) (cleaned up).

Because the State—absent an express constitutional provision to the contrary—shall

never be a defendant in any of its courts, Arkansas courts lack jurisdiction to hear any case

where the State is a defendant. See Wiley, 2020 Ark. 395, at 9, 611 S.W.3d at 500 (Baker, J.,

concurring) (noting that “sovereign immunity is jurisdictional immunity from suit”); see also

Andrews, 2018 Ark. 12, at 5, 535 S.W.3d at 619 (“Sovereign immunity is jurisdictional

immunity from suit . . . .”). Doctrines of immunity exist to prevent litigation, not liability.

Davis Nursing Ass’n v. Neal, 2019 Ark. 91, at 8, 570 S.W.3d 457, 462 (Wood, J., concurring)

(discussing charitable immunity, although this general principle of immunity equally applies

to sovereign immunity). Once litigation proceeds against an immune defendant, the

defendant has essentially lost this protection, regardless of the outcome. Id. This is no

different when the State is the defendant, and the concurrence does not explain why it

should be. See Ark. Const. art. 5, § 20.31

31
Framing sovereign immunity as an affirmative defense similarly offends the clear
text of article 5, section 20; never means never, and the State is without authority to waive the
requirements of our constitution. Contra Walther v. FLIS Enters., 2018 Ark. 64, at 16, 540

17
 The concurrence admirably attempts to defend our precedent as harmonious with

the original meaning of article 5, section 20. But it fails to make a convincing argument. This

court first recognized an ultra vires exception to sovereign immunity seventy-nine years after

we ratified our current constitution. 32 Shellnut v. Ark. State Game & Fish Comm’n, 222 Ark.

25, 31, 258 S.W.2d 570, 574 (1953). In Shellnut, this court held:

[E]quity will exercise jurisdiction to restrain acts or threatened acts of public
corporations or of public officers, boards, or commissions which are ultra vires
and beyond the scope of their authority, outside their jurisdiction, unlawful
or without authority, or which constitute a violation of their official duty,
whenever the execution of such acts would cause irreparable injury to, or
destroy rights and privileges of, the complainant, which are cognizable in
equity, and for the protection of which he would have no adequate remedy at
law.

Id. (quoting Jensen v. Radio Broad. Co., 208 Ark. 517, 520, 186 S.W.2d 931, 932 (1945)).

While this was the first time this court explicitly recognized the availability of such relief for

ultra vires acts by the State, it offered no explanation why this departure from the

constitution was appropriate. The case the court cited in support concerned ultra vires acts

of county officials rather than state actors. Shellnut, 222 Ark. At 31, 258 S.W.2d at 574 (citing

Jensen v. Radio Broad. Co., 208 Ark. At 520, 186 S.W.2d at 932).

S.W.3d 264, 273 (Womack, J., concurring in part and dissenting in part) (joining the
majority’s holding that sovereign immunity is an affirmative defense).
32
Although this court considered whether certain actions by the State were ultra vires
in State ex rel. Utley v. Cox, there, the State initiated the lawsuit and, therefore, article 5,
section 20 does not apply. 154 Ark. 493, 502, 243 S.W. 651, 652 (1922).

18
 Though similar to ultra vires acts, this court recognized an exception to sovereign

immunity for illegal state action only twenty-eight years after ratification. In McConnell v.

Arkansas Brick & Mfg. Co., this court affirmed an injunction against the Board of

Commissioners of Arkansas State Penitentiary to stop the rescission of a contract via

resolution. 70 Ark. 568, 589, 69 S.W. 559, 567 (1902). Though the court stated that “[n]o

order of the court can be against the state, nor against the defendants to compel them to

perform these duties as officers and agents of the state,” the majority found equitable relief

appropriate when there was a valid, enforceable contract. Id. at 591, 69 S.W. at 564, 567.

This inconsistent reasoning drew the ire of three dissenting justices, but seven years later,

this court overruled McConnell and held that there was no vested right to sue the State. Pitcock

v. State, 91 Ark. 527, 539, 121 S.W. 742, 746 (1909); accord Caldwell v. Donaghey, 108 Ark.

60, 66, 156 S.W. 839, 842 (1913) (holding that the lawsuit cannot be maintained because

it’s against the State). Yet, this court once more reversed course and again recognized an

exception for illegal acts forty years later—the same court that decided Shellnut. Fed. Compress

& Warehouse Co. v. Call, 221 Ark. 537, 541, 254 S.W.2d 319, 321 (1953).

In Hickenbottom v. McCain, this court held that sovereign immunity did not bar a

lawsuit challenging the constitutionality of the Employment Security Division in the

Department of Labor because the relief would impose no obligation on the State. 207 Ark.

485, 490, 181 S.W.2d 226, 228 (1944).33 This exception was apparently unknown until

33
At best, that reasoning is simplistic and specious. Any lawsuit that challenges the
constitutionality of an act of the General Assembly obliges the State to defend the law.

19
seventy years after ratification of our current constitution. See id. As with the exceptions for

illegal acts and ultra vires acts, decades passed between the State’s adoption of sovereign

immunity and any assumption that the defense was not absolute. And although the ratifying

generation’s interpretation of the constitution is not infallible, it is as persuasive as the

concurrence’s historical analysis of the Constitutional Convention’s apparent intentions. Cf.

Mark H. Allison, Sovereign Immunity: Holford Bonds, the Brooks-Baxter War, and the

Constitutional Convention of 1874, Ark. Law., Winter 2019, at 44; cf. Walter Nunn, The

Constitutional Convention of 1874, Arkansas Historical Association, The Arkansas

Historical Quarterly 177, 182 (Winter 1968). Simply put, Shellnut, Hickenbottom, McConnell,

and Federal Compress do not sufficiently explain why we should depart from the clear text of

our constitution; their disregard of the plain text of article 5, section 20 is shocking.

There is no legitimate reason for this court’s decision to depart from such a clear

textual command. The drafters of our constitution chose to never permit a lawsuit in

Arkansas courts when the State is a defendant. Ark. Const. art. 5, § 20. There is no exception

if a lawsuit raises the magic words. When advancing an originalist theory, we must focus on

the original public meaning: what did those who ratified the constitution understand article

5, section 20 to mean? See Fin. Oversight & Mgmt. Bd. for Puerto Rico v. Aurelius Inv., LLC, 140

S. Ct. 1649, 1666 (2020) (Thomas, J., concurring). It is beyond comprehension to suggest

20
they read never to mean except for these three exceptions.34 Especially considering the absence

of these three exceptions for several decades following ratification.

Insofar as the concurrence focuses the constitution’s use of state in article 5, section

20, neither the parties nor the majority opinion disagrees that the defendants in this lawsuit

are branches of the State. Every sitting justice on this court agrees, for example, that State

officials sued in their official capacity are entitled to sovereign immunity. E.g., Ark. Dep’t of

Fin. & Admin. v. Lewis, 2021 Ark. 213, at 3, 633 S.W.3d 767, 770. Yet, as with the exceptions

made for unconstitutional, illegal, or ultra vires acts, the concurrence cannot cite any

constitutional basis to support its suggestion that certain State officials are undeserving of

sovereign immunity when acting in their official capacities. See Arkansas Oil & Gas Comm’n

v. Hurd, 2018 Ark. 397, at 10, 564 S.W.3d 248, 255. Next, the concurrence will argue that

article 5, section 20’s use of defendant does not really mean defendant—merely another attempt

to make the words of our constitution mean something they do not. The concurrence should

not attempt to disguise its argument as textual or originalist, when it better resembles the

capacious judicial philosophizing of Roe v. Wade, 410 U.S. 113 (1973) and Obergefell v.

Hodges, 576 U.S. 644 (2015). The concurrence offers a brand of faux originalism that cherry

picks a few historical events while ignoring the plain text in an effort to bolster a results-

34
A court errs when it uses the literal meaning over the original, ordinary meaning.
See Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731, 1825 (2020) (Kavanaugh, J., dissenting).
Here, however, there is no difference. The literal and original meaning of never is the same.
It means the same thing in 2022, as it did in 1874.

21
driven jurisprudence, and, further, it confuses “rhetoric” and “political discourse” with

recognition of its judicial philosophy.

Despite its legal shortcomings, I join the concurrence’s lamentation of the costs of

this interpretation. Indeed, there are legitimate policy considerations for the protection of

our citizens that weigh in favor of creation of the exceptions. There are undoubtedly times

when the State and its officials injure the public. But results oriented jurisprudence perverts

the role of the judiciary. See, e.g., Lawrence v. Texas, 539 U.S. 558, 592 (2003) (Scalia, J.,

dissenting).

When the constitution is clear in its language, as it is here, there is no need for further

interpretation. The structural design of our constitution dictates that the power to change

article 5, section 20 lies not with the courts, but rather exclusively with the people of the

state of Arkansas; our precedent recognizing exceptions to the constitution usurps this

constitutionally enshrined prerogative. Ark. Const. art. 5, § 1; Ark. Const. art. 19, § 22. 35

Moreover, reading article 5, section 20 to mean what it says will not completely divest people

of relief from the State. Putative plaintiffs in many cases may still recover from the State

through the Arkansas State Claims Commission, and federal courts offer avenues of relief

for certain claims against the State. See, e.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976)

35
As recently as last spring, the General Assembly introduced a proposed ballot
initiative to amend article 5, section 20, which would allow the State to be sued in its courts,
as if it were any other party. S.J. Res. 3, Arkansas 93rd General Assem., Reg. Sess. (2021).

22
(holding that Congress can abrogate sovereign immunity when legislating under its power to

enforce the Fourteenth Amendment).

Although this marks a momentous departure from this court’s precedent, multiple

wrongs do not make a right. When this court’s precedent so clearly conflicts with our

constitution, we must not blindly follow it for the sake of stare decisis. See Edwards v. Thomas,

2021 Ark. 140, at 27, 625 S.W.3d 226, 240–41 (Webb, J., concurring in part and dissenting

in part). Stare decisis is an important principle that provides consistency to legal

interpretation, but it is more important that we not cleave to mistakes simply because we

have maintained them for decades. The common law doctrine of sovereign immunity springs

from the theory that “the King can do no wrong.” A version of that policy was adopted for

the state of Arkansas when the people, as is their right, ratified our current constitution. We

must be cautious not to let stare decisis become so absolute in our opinions that we view it

as “the court can do no wrong.” We took an oath to uphold the Arkansas Constitution, not

the Arkansas Reports.

Although I have either written or joined opinions36 that recognized exceptions to

sovereign immunity, “it is never too late to surrender former views to a better considered

36
See, e.g., Ark. Dep’t of Educ. v. McCoy, 2021 Ark. 136, at 12, 624 S.W.3d 687, 694
(Womack, J., concurring in part and dissenting in part); Hutchinson v. McArty, 2020 Ark.
190, at 7, 600 S.W.3d 549, 553 (Womack, J., dissenting); Harmon v. Payne, 2020 Ark. 17, at
4, 592 S.W.3d 619, 623; Banks v. Jones, 2019 Ark. 204, at 4, 575 S.W.3d 111, 115; FLIS
Enters., 2018 Ark. 64, at 16, 540 S.W.3d at 273 (Womack, J., concurring in part and
dissenting in part). Relatedly, the concurrence’s invocation of Mahoney v. Derrick, 2022 Ark.
27 is misleading. In Mahoney, the plaintiffs brought the bulk of their claims under 42 U.S.C.
1983. The Supreme Court of the United States has held that states cannot divest their courts

23
position.” South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2100 (2018) (Thomas, J.,

concurring) (cleaned up). A careful study of our constitution and recognition that it controls

this State’s law rather than our precedent makes this departure not only appropriate but also

necessary.

For these reasons, I respectfully dissent.

Leslie Rutledge, Att’y Gen., by: Michael A. Mosley, Ass’t Att’y Gen., for appellants.

Kutak Rock LLP, by: Jess Askew III, for appellees.

of general jurisdiction from the ability to hear federal claims. Haywood v. Drown, 556 U.S.
729, 740–41. Accordingly, sovereign immunity could not operate as a bar to those unique
claims. Id.

24