The Arkansas Supreme Court this morning reversed long court precedent — that the state legislature may pass laws waiving the sovereign immunity provision, or protection against lawsuit, of the state Constitution in cases seeking monetary damages.

The decision was 5-2. A dissent says the consequences are “astounding” and could apply to some past cases of enormous significance.


The decision came in the case of a Rich Mountain Community College bookstore manager seeking overtime compensation. He argued, and a circuit judge agreed, that the state legislature had explicitly waived constitutional immunity in minimum wage cases and cited past cases on the point in saying the case should go to trial. Said the court in a decision written by Chief Justice Dan Kemp that dismissed the case:

… we acknowledge that the General Assembly enacted the AMWA and allowed“an action for equitable and monetary relief against [the State].”  Nevertheless, we conclude that the legislative waiver of sovereign immunity in section 11-4-218(e) is repugnant to article 5, section 20 of the Arkansas Constitution.In reaching this conclusion, we 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.” The people of the state of Arkansas approved this change when ratifying the current constitution. The General Assembly does not have the power to override a constitutional provision. To the extent section 11-4-218(e) directly contradicts the constitution, it must fail.

The court then addressed “stare decisis,” or the practice of holding to past precedent. It quoted a 1935 decision that firmly rejected waivers of immunity and noted an erosion of that practice beginning in 1996. The minimum wage waiver was passed in 2006. The six decades of the no-waiver view should control, the court said.


…  the General Assembly cannot waive the State’s immunity pursuant to article 5, section 20. To the extent that other cases conflict with this holding, we overrule those opinions. 

People harmed by the state and its agencies, such as this community college (now a part of the University of Arkansas System), have a “proper avenue for redress against State action, which is to file a claim with the Arkansas Claims Commission.”

The full decision is here.


The court noted that the plaintiff made other claims, but they weren’t covered in the judge’s ruling allowing the case to proceed. It ruled only on the decision not to dismiss. It reversed that ruling and dimissed the case as the UA had asked.

Justice Karen Baker wrote a dissenting opinion, joined by Justice Jo Hart. Chad Pekron, sitting as special justice, joined the majority. He replaced Justice Courtney Goodson, whose husband is a member of the UA Board of Trustees.

Baker’s dissent notes the far-ranging consequences. In this case, she noted that private employers must pay minimum wages, but, by this ruling, the state need not. She argued that the constitution should be interpreted as meaning the state could not be compelled to be a defendant, but it could choose to do so. She also said it was disingenuous to limit the application of the ruling to monetary judgments.

The majority’s holding that the legislature may no longer waive sovereign immunity, necessarily means that the executive and judicial branches likewise may not waive sovereign immunity because any other interpretation would result in treating the legislature differently from the executive and judicial branches. 

She objected, too, to the majority’s unwillingness to take up the plaintiff’s argument that other parts of the Constitution overrode sovereign immunity — those that guarantee a jury trial and a remedy for “all injuries or wrongs.”


She also said the court had failed to consider whether changes in past precedent over the last 20 years that allowed certain actions against the state were unjust. “Instead, the majority’s decision, in a perfunctory fashion, overhauls over twenty years of our well-established law on sovereign immunity and has effectively revived the antiquated doctrine that “the king can do no wrong.””

The implications are “astounding,” Baker wrote, and could affect past decisions of significance.

See Lake View Sch. Dist. No. 25 of Phillips Cty. v. Huckabee, 340 Ark. 481, 10 S.W.3d 892 (2000) (holding that the State, through the executive branch, waived sovereign immunity when it signed off on two published notices to the class members advocating attorneys’ fees); Ark. Dep’t of Human Servs. v. R.P., 333 Ark. 516, 970 S.W.2d 225 (1998) (holding that the General Assembly waived the Department’s sovereign immunity as to providing family services in child-welfare proceedings).

The following list includes, but is not limited to, the specific types of actions that the majority’s decision calls into question when the suit is filed against the State of Arkansas:

•Arkansas Minimum Wage Act
•Arkansas Whistle Blower’s Act
•Post-conviction cases
•Land-condemnation cases
•Illegal-exaction cases
•Suits against State owned hospitals
•Freedom of Information Act
•Suits filed against DHS, including dependency-neglect cases.

Let the fallout begin.