Ark. Dep't of Cmty. Corr. v. City of Pine Bluff

• Decision Date: 07 February 2013
• Docket Number: No. 12–666.,12–666.
• Citation: 425 S.W.3d 731,2013 Ark. 36
• Parties: ARKANSAS DEPARTMENT OF COMMUNITY CORRECTION and State of Arkansas, Appellants v. CITY OF PINE BLUFF, Appellee.
• Court: Arkansas Supreme Court

2013 Ark. 36

425 S.W.3d 731

ARKANSAS DEPARTMENT OF COMMUNITY CORRECTION and State of Arkansas, Appellants

v.CITY OF PINE BLUFF, Appellee.

No. 12–666.

Supreme Court of Arkansas.

Feb. 7, 2013.

Dustin McDaniel, Att'y. Gen., by: Scott P. Richardson, Ass't. Att'y. Gen., for appellants.

Althea Hadden–Scott, Pine Bluff City Att'y., for appellee.

JIM HANNAH, Chief Justice.

Appellants, Arkansas Department of Community Correction (“DCC”) and the State of Arkansas, appeal the order of the Jefferson County Circuit Court granting declaratory judgment and injunctive relief in favor of appellee, City of Pine Bluff (the “City”). On appeal, DCC contends that the circuit court erred (1) in rejecting DCC's argument that sovereign immunity barred the City's claims; (2) in finding that venue was proper in Jefferson County; and (3) in finding that the City's decision to zone DCC property as R–1 residential was not arbitrary and capricious. We reverse and dismiss.

DCC owns a facility in Jefferson County that is part of several tracts of state land that were annexed to the City in 1999.¹Pursuant to the City's zoning policy, the annexed property was automatically zoned as R–1 residential.² No City zoning officials ever inspected any of the prison property. When the property at issue here was annexed, it was used to house DCC employees who traveled to the facility for training. In 2011, DCC, with the approval of the Board of Corrections (the “Board”), decided to use three existing buildings on its property to house persons who had been granted parole from ADC.

The City objected to DCC's adding transitional housing to its prison complex. On April 5, 2012, the City filed a petition in the Jefferson County Circuit Court for declaratory judgment and injunctive relief to prohibit DCC from housing persons who had been granted parole on its prison property until it received approval to do so from the City's zoning officials. In response, DCC filed a motion to dismiss, asserting the defenses of sovereign immunity and improper venue and contending that the application of R–1 residential zoning to the prison complex was arbitrary and capricious and, therefore, unenforceable.

After a hearing, the circuit court denied DCC's motion to dismiss and proceeded to a trial on the merits. Subsequently, the circuit court entered an order granting declaratory judgment and injunctive relief in favor of the City. The circuit court concluded that the language found in Arkansas Code Annotated section 16–93–1603 (Supp.2011) acted as a waiver of sovereign immunity, that venue was proper in Jefferson County, that DCC was subject to the zoning laws of the City, pursuant to section 16–93–1603(c)(2), and that the injunction would remain in effect until DCC applied to the City for a User Permit on Review (“UPOR”) and a UPOR was granted. DCC appeals.

We first consider whether DCC is entitled to sovereign immunity from a suit to enjoin it from changing the use of a portion of its facility. 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.” This court has extended the doctrine of sovereign immunity to include state agencies. Ark. Game & Fish Comm'n v. Eddings, 2011 Ark. 47, at 4, 378 S.W.3d 694, 697 (citing Fireman's Ins. Co. v. Ark. State Claims Comm'n, 301 Ark. 451, 455, 784 S.W.2d 771, 773 (1990)). Where the pleadings show that the action is, in effect, one against the State, the circuit court acquires no jurisdiction. Weiss v. McLemore, 371 Ark. 538, 541, 268 S.W.3d 897, 900 (2007). In determining whether the doctrine of sovereign immunity applies, the court must decide if a judgment for the City will operate to control the action of the State or subject it to liability. LandsnPulaski, LLC v. Ark. Dep't of Corrections, 372 Ark. 40, 42, 269 S.W.3d 793, 795 (2007). If so, the suit is one against the State and is barred by the doctrine of sovereign immunity, unless an exception to sovereign immunity applies. See id., 269 S.W.3d at 795.

We conclude that a judgment against DCC would operate to control the action of the State because the judgment would allow the City to direct how DCC uses its property. Therefore, the City's suit against DCC is barred by the doctrine of sovereign immunity unless an exception applies.

This court has recognized three ways in which a claim of sovereign immunity may be surmounted: (1) where the State is the moving party seeking specific relief; (2) where an act of the legislature has created a specific waiver of sovereign immunity; and (3) where the state agency is acting illegally or if a state agency officer refuses to do a purely ministerial action required by statute. Eddings, 2011 Ark. 47, at 6 n. 2, 378 S.W.3d at 698 n. 2 (citing Short v. Westark Cmty. Coll., 347 Ark. 497, 504, 65 S.W.3d 440, 445 (2002); LandsnPulaski, 372 Ark. at 43, 269 S.W.3d at 795).

In its order granting declaratory judgment and injunctive relief, the circuit court, citing Arkansas Code Annotated sections 14–54–401 et seq., found that the City had exercised the authority granted to it by the legislature to adopt land use plans and a comprehensive zoning ordinance. The circuit court further found that Arkansas Code Annotated section 16–93–1603, which addresses the powers and duties of the Board, acts as a waiver of sovereign immunity. Specifically, the circuit court found that the legislature created a waiver of sovereign immunity in section 16–93–1603(c)(2) because that statute requires compliance with local zoning ordinances before a transitional housing facility can operate. Section 16–93–1603 provides in relevant part:

(a) The Board of Corrections shall promulgate rules that shall set minimum standards for all transitional housing facilities in the State of Arkansas.

(b)(1)....

(2) The transitional housing facility shall comply with all the standards set by the rules established by the Board of Corrections under subsection (a) of this section.

(c) The rules described in subsection (a) of this section shall include at least the following:

(1)....

(2) Compliance with any local zoning ordinances;

....

Ark.Code Ann. § 16–93–1603(a), (b)(2), (c)(2).

DCC contends that section 16–93–1603 contains no declaration of legislative intent to waive sovereign immunity. DCC asserts that section 16–93–1603 includes no provision that assigns licensing, rulemaking authority, or enforcement authority to any entities other than the Board or DCC. In addition, DCC asserts that there is no statutory provision indicating that “compliance with any local zoning ordinances” means that municipal corporations are vested with veto power over the Board and DCC.

A statutory waiver of sovereign immunity may be express or implied. See, e.g., State v. Tedder, 326 Ark. 495, 496, 932 S.W.2d 755, 756 (1996) (noting that Ark.Code Ann. § 26–18–507(e)(2)(A) (Repl.1992) expressly provides that a taxpayer may sue the State for an improperly collected sales tax after a refund has been sought and refused or the Commissioner has not acted upon the taxpayer's request); McLemore, 371 Ark. at 544, 268 S.W.3d at 901–02 (holding that the court could infer from the language used in Ark.Code Ann. § 24–6–205 (Repl.2000) that the legislature intended to waive the State's sovereign immunity so that an underpaid retiree might sue to have his or her underpayment corrected).

In the instant case, section 16–93–1603 does not contain an express waiver of sovereign immunity; therefore, we must determine whether, as the City argues, the statute contains an implied waiver of sovereign immunity. In support of its contention that section 16–93–1603 provides an implied waiver of sovereign immunity, the City cites McLemore, supra, and Arkansas Department of Human Services v. R.P., 333 Ark. 516, 970 S.W.2d 225 (1998). At issue in McLemore was whether Arkansas Code Annotated section 24–6–205 (Repl.2000) provided an implied waiver of sovereign immunity. That statute provided that, in the event of an error that resulted in a State Police retiree from receiving more or less than he or she would have been entitled to receive, the Board of Trustees of the Arkansas State Police Retirement System “shall correct the error” and “shall adjust the payment” so that the person may be paid correctly. SeeArk.Code Ann. § 24–6–205(a). Section 24–6–205(b) gave the Board the right to recover any overpayment the officer may have received from the system. This court concluded that section 24–6–205 provided an implied waiver of sovereign immunity, stating that,

even though the statute does not spell out the mechanism by which the Board must adjust an erroneous payment, the statute mandates that the Board “shall adjust the payment” and “shall correct the error” that led to the underpayment (or the overpayment, although that is not the situation in this case). From this mandatory language, it can easily be inferred that the legislature intended to waive the State's sovereign immunity so that an underpaid retiree might sue to have his or her underpayment corrected.

We acknowledge the State's argument that, because § 24–6–205 granted the Board the right to recover any overpayment to the officers but did not provide a concomitant right for an aggrieved retiree, the General Assembly must not have intended to waive the State's sovereign immunity. However, we cannot agree with such a conclusion. To construe § 24–6–205 in such a way as to preclude State Police retirees from bringing suit to compel the State to “correct [its] error” and “adjust the payment” would eviscerate the purpose of the statute. See Ark. Dep't of Human Servs. v. R.P., supra. Such a consequence could not have been intended by the General Assembly. Id. Accordingly, we hold that § 24–6–205 constitutes a limited waiver of the State's sovereign immunity.

McLemore, 371 Ark. at 544, 268 S.W.3d at 901–02.

Similarly, this court concluded that there was a waiver of sovereign immunity “under ...