A case brought under the Arkansas Whistleblower Act revealed a division on the court on whether that act can override the state’s protection from lawsuit under the sovereign immunity doctrine.
Eugene Butler sued the University of Arkansas over his firing as a UAPB police officer. He alleged he was fired for reporting waste and ethical violations on campus and he sought relief under the Whistle Blower Act.
The UA said it was protected from suit by sovereign immunity and also said he had failed to state a cause of action under the law. Judge Tim Fox, however, rejected a dismissal motion without specifying why and the UA appealed that ruling to the Supreme Court. The Supreme Court found “no factual basis” for a whistle blower claim, reversed Fox and dismissed the lawsuit, in a split decision that didn’t resolve the constitutional status of the the Whistle Blower Act.
The Constitution forbids the General Assembly from waiving sovereign immunity, but there are avenues to seek equitable relief for acts of bad faith. In this case, the Court said Butler made conclusory statements but it was “unclear what, if anything, he actually reported. Furthermore it is unclear what he refused to lie about or that he was terminated because he refused to lie.” Absent such an argument, Butler failed to state facts that entitled him to relief. With no valid exception to sovereign immunity given, it cannot be waived. The majority said it “need not reach” the question of whether the statute was unconstitutional.l
Special Justice Margaret Dobson concurred in dismissal, though she argued that Butler HAD given a cause of action by showing he’d been threatened with firing for revealing information about an audit of a dormitory. However, she said that she believed the General Assembly’s waiver of sovereign immunity through the Whistle Blower Act was unconstitutional.
Justices Paul Danielson, joined by Special Justice Robert Jones, dissented because they said Judge Fox hadn’t clearly ruled on the sovereign immunity issue and thus the Supreme Court lacked authority to hear the interlocutory appeal. Justice Jo Hart also dissented for a similar reason. She said the court should have ordered Fox to make an express ruling on sovereign immunity.
Is the Whistle Blower Act constitutional? That question will have to be decided another day.