In a 5-2 decision today, the Arkansas Supreme Court neutered the Arkansas Whistle-Blower Act. The high court ruled that a former employee of the Department of Arkansas Community Corrections, who alleged she was fired for protesting workplace discrimination and participating in an investigation to uncover further discrimination, could not find relief in the Whistle-Blower Act because of sovereign immunity.
In her dissent, Justice Jo Hart said the ruling “would effectively strike down the AWBA, which provides State employees
In January, the Supreme Court ruled that the legislature could not pass laws waiving the sovereign immunity provision, or the state’s protection against lawsuits, of the Arkansas Constitution. The decision did not necessarily prevent the state from being successfully sued, but critics, including dissenting justices, predicted the impact would be far-reaching.
Justice Shawn Womack, writing for the majority, cited the January decision.
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. … 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.’”
Womack says the only issue before the court was whether the legislature could waive sovereign immunity. Justice Robin Wynne provides a concurring opinion seemingly just to underline that point:
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.
Hart, who along with Justice Karen Baker dissented in the January opinion, offered a fiery dissent. She argued that the constitution can’t be read in isolation.
[A]rticle 5, section 20 presents an ostensibly broad premise: “[t]he State of Arkansas shall never be made defendant in any of her courts.” Definitively, however, the drafters did not intend this provision to operate as a total bar to all lawsuits against the State. We know this because the drafters wrote many provisions into the very same constitution creating scenarios in which the State would most assuredly be (and has most assuredly been) sued.
We note that article 2, section 22 allows Arkansas citizens to hale the State into court to demand “just compensation” for property taken by the State. See, e.g., Bachman v. State, 235 Ark. 339, 343, 359 S.W.2d 815, 817 (1962) (“The state cannot of course destroy or injure a person’s private property without just compensation and without due process of law.”). Additionally, article 2, section 11 provides that the “privilege of the writ of habeas corpus shall not be suspended” except by the legislature in limited circumstances, and article 7, section 49 provides that “[a]ll writs and other judicial process, shall run in the name of the State of Arkansas[.]” Still another example is found in article 16, section 13, which provides that “[a]ny citizen of any county, city or town may institute suit, in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.” See, e.g., McGhee v. Ark. State Bd. of Collection Agencies, 360 Ark. 363, 372–73, 201 S.W.3d 375, 380 (2005) (“According to Ark. Const. Art. 5, section 20, ‘The State of Arkansas shall never be made a Defendant in any of her Courts.’ While this provision generally prohibits suits against the State or a state agency, we have held that the illegal-exaction clause, as the more specific provision, controls the more general prohibition against suit provided in art. 5 § 20, and grants taxpayers the right to sue.”). Plainly, the drafters did not intend for the State to be forever immune from suit in its courts.