concurring. I concur in the decision reached by the majority but conclude that this case must be dismissed on different grounds. I note first, as the majority states, that “an amended complaint, unless it adopts and incorporates the original complaint, supersedes the original complaint.” Edward J. DeBartolo Corp. v. Cartwright, 323 Ark. 573, 577, 916 S.W.2d 114, 116 (1996). The amended complaint did not incorporate the original complaint. Therefore, the amended complaint defines this action.
The plaintiffs assert in the amended complaint that the students at issue are being “deprived of adequate and equal education opportunities which will severely limit their life options. ...” While that might be thought to at least imply that plaintiffs are suing for a failure to provide a “general, suitable and efficient system of free public schools,”1 the amended complaint simply does not state that cause of action. Instead the complaint seeks review of a decision of a state agency. Therefore, the discussion by the majority of Lake View Sch. Dist. No. 25 v. Huckabee, 340 Ark. 481, 10 S.W.3d 892 (2000), is irrelevant. Lake View concerned whether the public school system established by the General Assembly met constitutional requirements. Whether the mandate in Lake View had been recalled has no effect on the issues in this case.
Plaintiffs assert that “the State actions allowing or requiring the merger of the Marvell and Elaine School Districts” are “arbitrary and capricious and in violation of the rules established for merger by the State Board of Education.” According to plaintiffs, laws and procedures adopted in 2004 are at issue. Thus, what is at issue is whether an administrative agency reached the correct decision.
The Board ofEducation made a decision merging the school districts. The Board ofEducation is an administrative agency, and any judicial review of that decision is governed by the Administrative Procedure Act. See, e.g., Arkansas State Bd. of Educ. v. Purifoy, 292 Ark. 526, 731 S.W.2d 209 (1987). Under Ark. Code Ann. § 25-15-212 (b)(1) (Repl. 2002), plaintiffs had thirty days from the date the decision of the Board was served to file a petition in circuit court seeking judicial review of the decision.2 Service of the Board’s order was made on March 21, 2006. The complaint was not filed until June 26, 2006. Even if we were to consider the complaint as a valid petition under the Administrative Procedure Act, it was not timely, and on that basis alone the case must be dismissed.
However, plaintiffs did not file a petition under the Administrative Procedure Act and, as such, the suit is one against the State of Arkansas. Under article 5, section 20 of the Constitution of Arkansas, the State shall never be made defendant in any of her courts. Sovereign immunity is jurisdictional immunity from suit. Department of Human Servs. v. Crunkleton, 303 Ark. 21, 791 S.W.2d 704 (1990). Plaintiffs’ remedy, if any, was under the Administrative Procedure Act. The case must be dismissed.
See Ark. Const. art. 14, § 1.
Arkansas Code Annotated section 25-15-212(b)(l) (Repl. 2002) provides that the petition must be filed within thirty days from service on the petitioner. Plaintiffs were not parties to the action before the Arkansas State Board of Education and naturally were not served. However, the facts show they had actual notice, and in any event, ninety-seven days passed from the date of service of the order to the date that plaintiffs filed their complaint.