Ark. Cmty. Corr. v. Barnes

• Decision Date: 12 April 2018
• Docket Number: No. CV–17–496,CV–17–496
• Parties: ARKANSAS COMMUNITY CORRECTION, Appellant v. Annette BARNES, Appellee
• Court: Arkansas Supreme Court

542 S.W.3d 841

ARKANSAS COMMUNITY CORRECTION, Appellant

v.Annette BARNES, Appellee

No. CV–17–496

Supreme Court of Arkansas.

Opinion Delivered: April 12, 2018

Leslie Rutledge, Att'y Gen., by: Maryna Jackson, Ass't Att'y Gen., for appellant.

Churchwell Law Offices, Hot Springs, by: Joseph Churchwell ; and Sutter & Gillham, P.L.L.C., by: Luther Oneal Sutter, Little Rock, for appellee.

SHAWN A. WOMACK, Associate Justice

The appellant, Arkansas Community Correction ("ACC"), filed an interlocutory appeal under Rule 2(a)(10) of the Arkansas Rules of Appellate Procedure—Civil from an order of the Pulaski County Circuit Court denying its motion for judgment on the pleadings. The appellant asserts that Annette Barnes's complaint is barred by the doctrine of sovereign immunity. We reverse and dismiss.

Barnes alleged in her complaint that she was terminated from her position with the ACC for protesting discriminatory actions on behalf of her employer and participating in an investigation designed to discover further discrimination. She alleged that her termination was a violation of the Arkansas Whistle–Blower Act ("AWBA") and asked for damages, reinstatement, attorneys' fees, costs, and all other relief available under the Act and the law. ACC filed its answer and affirmatively pled that her claim was barred by sovereign immunity. Thereafter, ACC filed a motion for judgment on the pleadings pursuant to Ark. R. Civ. P. 12(c) arguing that it is an agency of the State and the General Assembly could not validly waive the state's sovereign immunity under the AWBA. Ark. Code Ann. §§ 21–1–601 et seq. (Repl. 2016). The circuit court denied the motion and ACC appealed.

I. 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." Bd. of Trs. v. Andrews , 2018 Ark. 12, at 4, 535 S.W.3d 616, 618. The issue of whether a party is immune from suit is purely a question of law and is reviewed de novo. Id.

II. Sovereign Immunity

Article 5 of the Arkansas Constitution is the Legislative Article, which, among other things, outlines the powers, duties, responsibilities, and limitations of the General Assembly. Article 5 section 20 provides that "[t]he State of Arkansas shall never be made defendant in any of her courts." In Andrews , the Board of Trustees of the University of Arkansas argued that it was immune from suit for claims under the Arkansas Minimum Wage Act based on sovereign immunity. Andrews , 2018 Ark. 12, at 2–3, 535 S.W.3d at 618. This court concluded that "the General Assembly cannot waive the State's immunity," and therefore, the statute that provided for the State to be made a defendant in the Act was beyond the scope of legislative powers as defined by the Arkansas Constitution. Id. at 10–12, 535 S.W.3d at 622–23. In reaching that conclusion, we interpreted the constitution "precisely as it reads" and determined that "[t]he drafters of 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.' " Id. at 10–11, 535 S.W.3d at 622. Regarding our previous decisions, this court specifically stated, "To the extent that other cases conflict with this holding, we overrule those opinions." Id. at 11, 535 S.W.3d at 623.

As in the Minimum Wage Act, under the AWBA if there is unlawful adverse action on behalf of a public employer then the employee may claim injunctive relief, reinstatement, compensation, and attorneys' fees. Ark. Code Ann. § 21–1–605 (Repl. 2016). The General Assembly clearly intended to subject the State to liability under the AWBA. Ark. Code Ann. § 21–1–602(5) (Repl. 2016); Smith v. Daniel , 2014 Ark. 519, at 6, 452 S.W.3d 575, 578–79 (when the General Assembly authorized a suit against a "public employer" it expressly waived sovereign immunity). Per our holding in Andrews , to the extent the legislature subjected the State to liability in the AWBA, it is prohibited by article 5, section 20 of the Arkansas Constitution.

ACC was entitled to judgment as a matter of law, and the circuit court erred when it denied ACC's motion for judgment on the pleadings based on sovereign immunity. We emphasize here, as in Andrews , that the only issue before this court is whether the General Assembly's choice to abrogate sovereign immunity in the AWBA is prohibited by the constitution. We hold that it is. We therefore reverse and dismiss the case

Reversed and dismissed.

Wynne, J., concurs.

Baker and Hart, JJ., dissent.

Robin F. Wynne, Justice, concurring.

I agree with the majority that the legislative waiver of the state's sovereign immunity contained in the Arkansas Whistle–Blower Act (AWBA), Arkansas Code Annotated sections 21–1–601 et seq. (Repl. 2016), is unconstitutional for the reasons outlined in our decision in Board of Trustees v. Andrews , 2018 Ark. 12, 535 S.W.3d 616, a case involving the Arkansas Minimum Wage Act (AMWA). I write separately to explain the reasoning behind my agreement.

Article 5, § 20 of the Arkansas Constitution prohibits the State of Arkansas from being made a defendant in any of her courts. The purported waiver of sovereign immunity contained in the AWBA seeks, by its own operation, to override Article 5, § 20. This case and Andrews stand for the proposition that the legislature does not have the authority to override Article 5, § 20. I feel it imperative to note that this is the only proposition for which these cases stand regarding the state's constitutional immunity from suit, as it was the only issue before this court in either case. The purported waivers contained in the AMWA and AWBA are unconstitutional. The question of whether there exist any circumstances under which a state actor may be sued under these acts is not addressed in this case or Andrews , and remains for another time.

Karen R. Baker, Justice, dissenting.

Justice Hart's dissent ably sets out many of the flaws in the majority's opinion in Andrews , and I join it. However, I write separately to point out the problems inherent in the broad sweeping language employed by the majority in Andrews . In overruling decades of precedent, the majority in Andrews held that "... [W]e 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 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." If "never" does indeed mean never, as the majority held in Andrews , and made means cause to become—rather than compelled, as I contended in my dissent in Andrews is the correct interpretation—then this must be the law for everyone, all of the time. The majority is not free to pick and choose when it will apply. "Never" does not mean unless an attorney for the state has failed to raise the issue, as the majority held in Walther v. Flis Enterprises Inc. , 2018 Ark. 64, 540 S.W.3d 264, nor can it mean unless authorized by the judicial branch or the executive branch rather than the legislative branch. Likewise, "never" cannot mean except when not ruled on by the circuit court below. The definition of "never" is "at no time" Merriam–Webster's Collegiate Dictionary (9th ed.) (1991), or "not ever; on no occasion; at no time" American Heritage Dictionary (4th ed.) (2000). Thus, because the Arkansas Supreme Court is a "court" established by the Arkansas Constitution, the State of Arkansas cannot be caused to become a defendant in this court, by this court, or in any other Arkansas court under the reasoning employed by the majority in Andrews . Such an interpretation clearly conflicts with other provisions of the constitution which is a fact the majority conveniently chose to ignore in Andrews .

Then only twenty-three days after the mandate issued in Andrews , the majority abandoned the holding of that case, and in Walther , without distinguishing Andrews or doing a proper Constitutional analysis, held that sovereign immunity was waived by the attorney for the State. Now, again without a proper constitutional analysis, the majority returns to the holding in Andrews to dismiss Barnes' case. While I recognize this is the logical result dictated by the majority's holding in Andrews , I cannot agree that it is a correct analysis of the Arkansas constitution.

Accordingly, I dissent from the majority opinion.

Hart, J., joins.

Josephine Linker Hart, Justice, dissenting.

The majority's discussion and disposition of this case deprives Annette Barnes, and hereafter all the people of this state, of access to their state courts to redress wrongs perpetrated at the hands of the state government. The majority asserts that its decision in Board of Trustees of University of Arkansas v. Andrews , 2018 Ark. 12, 535 S.W.3d 616 compels this conclusion. In Andrews , the majority held that article 5, section 20 of the Arkansas Constitution, which provides that "[t]he State of Arkansas shall never be made defendant in any of her courts," prevents the General Assembly from passing a law allowing the State to be sued in a state court, couching its decision in terms of "sovereign immunity." Andrews, supra. However, the court reached this decision by failing to perform an adequate constitutional analysis.

When this court interprets a constitutional provision, it must analyze each individual provision of the constitution alongside the others contained therein. See Ward v. Priest , 350 Ark. 345, 382, 86 S.W.3d 884, 898 (2002) ("It is a rule of universal application that the Constitution must be considered as a whole, and that, to get the meaning of any part of it, we must...