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It is Good to be King: No, You Cannot Sue the State!

In battles between the proverbial David and Goliath, sometimes the giant wins. That is often the case when it comes to wrongful acts committed by the State of Arkansas, as the state is protected by sovereign immunity.

The doctrine of sovereign immunity generally prevents a state from being civilly liable for its wrongdoing. A principle that has its origins in the power of monarchies to establish courts of law, the concept of sovereign immunity is exemplified in the maxim rex non protest peccare (“the king can do no wrong”). This principle is included in the Arkansas Constitution in Article 5, Section 20, which provides that “the State of Arkansas shall never be made defendant in any courts.” However, the Arkansas Supreme Court has previously held, over many years and in many cases, that the Arkansas General Assembly can waive sovereign immunity. As a result, there are Arkansas statutes that explicitly include such a limited waiver. Thus, Arkansas has been sued successfully many times over many years, under the Freedom of Information Act, Worker’s Compensation laws, for land condemnation damages, and under a myriad other statutory waivers, including the Arkansas Minimum Wage Act which includes a specific waiver of sovereign immunity with respect to minimum wage claims by state employees against Arkansas.

Given this established precedent, it is surprising that the Arkansas Supreme Court recently overturned that precedent and held that the Arkansas General Assembly does not have the authority to waive sovereign immunity. In Bd. of Trs of the Univ. of Ark. v. Andrews, 2018 Ark. 12 (2018), the majority of the Arkansas Supreme Court held that the statutory waiver of sovereign immunity for Minimum Wage Act violations is invalid, because it is “repugnant to article 5, section 20 of the Arkansas Constitution.” In support of its ruling, the Arkansas Supreme Court noted that in contrast to the earlier 1868 Arkansas Constitution, which specifically allowed for waiver of sovereign immunity, the current Arkansas Constitution was ratified without that language and instead clarified that the State of Arkansas is “never” to be made a defendant. Due to its ruling in Andrews, the Arkansas Supreme Court has now established that the Arkansas General Assembly is prohibited from waiving sovereign immunity and subjecting the State of Arkansas to civil liability in court.

While the State of Arkansas is not subject to being sued in Court, the Arkansas General Assembly has established the Arkansas Claims Commission to consider the claims of aggrieved parties that have been harmed/damaged by the wrongdoing of the State of Arkansas. This method of redress has previously been approved by the Arkansas Supreme Court and was once again recognized as a viable option in the Andrews case. However, unlike in a court of law, where a party is entitled to due process and an unbiased judge/jury, a claimant before the Arkansas Claims Commission is at the mercy of the Arkansas General Assembly, which has the sole right to determine whether any funds should be paid to reimburse the claimant for his/her damages.

This decision has thrown into huge uncertainty the long-standing presumption of lawyers and claimants throughout Arkansas that the courts provide effective legal redress for wrongs inflicted upon them by the state. It is good to be king!

 

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