REP. MARK LOWERY (file photo) Brian Chilson

A January ruling by the Arkansas Supreme Court that broadly reinterpreted the sovereign immunity provision of the state Constitution continues to confound one legal issue after another. Can farmers sue the State Plant Board over a regulation banning dicamba? Can spurned marijuana cultivation applicants challenge the Medical Marijuana Commission’s process for awarding licenses?

Can anyone ever sue the state, for any reason?


On Monday, the legislature’s Joint Education Committee heard from staff attorneys about the potential effects of the new sovereign immunity ruling on a decades-old court case that has become the cornerstone of public school funding in Arkansas: The state Supreme Court’s Lake View decision, which proceeded from a lawsuit by the Lake View School District over the state’s failure to provide an “adequate and equitable” education for all students as demanded by the Arkansas Constitution.

As a result of Lake View, in the early 2000s, the court required then-Governor Mike Huckabee and the General Assembly (then controlled by Democrats) to overhaul Arkansas’s method of paying for schools. What resulted was the establishment of a biennial process — known at the Capitol as “adequacy” — in which legislators regularly increase the money appropriated to public schools by an amount prescribed by a funding formula. As the legislature has grown more conservative in recent years, it’s started making the annual increases smaller and flirted with disobeying the strictures of adequacy outright. (The court itself has entirely turned over since the Lake View decision.)


Yet Lake View still stands, which may be one reason Arkansas has avoided the punishing cuts to public education seen in places like Oklahoma and Kansas. In 2017, legislators Rep. Mark Lowery (R-Maumelle) and Sens. Alan Clark (R-Lonsdale) and Blake Johnson (R-Corning) proposed two constitutional amendments that targeted Lake View. “We’re getting the courts out of our education system,” Clark said at the time. Neither proposal gained traction.

But if the state can’t be sued, does that mean the mandate that resulted from the Lake View district’s suit against the state is still applicable? “Based on what we know, probably yes,” attorney Matthew Miller told legislators on Monday.


The recent sovereign immunity ruling came in a case called Board of Trustees of the University of Arkansas v. Andrews, in which a bookstore manager at Rich Mountain Community College sought overtime compensation from the state. Arkansas’s minimum wage statute — crafted by the legislature — says sovereign immunity is waived in such cases. The Supreme Court said in the Andrews case that the legislature did not have the ability to waive sovereign immunity, because its authority is superseded by the Constitution. Article 5, Section 20 of the Constitution says “The State of Arkansas shall never be made defendant in any of her courts.” (Two justices dissented from the majority opinion to warn the court against this departure from recent precedent.)

Still, it’s unclear just how literally the justices want to construe their newly enhanced prohibition on lawsuits against the state. The court seems to have decided the legislature is never allowed to waive sovereign immunity by statute; it affirmed as much in a subsequent decision on the state’s whistleblower act. Lake View, however, is a “fundamentally different” question, Miller said, because the plaintiffs in that case based their suit on the Constitution itself.

“It alleged that the school funding system was unconstitutional based on provisions in Article 14 and Article 2 of the Arkansas Constitution,” he said. “To argue [sovereign immunity] in this context, you’re arguing one piece of the Constitution against itself, basically. … If someone files a challenge, we may get an interpretation that illustrates some implications, but as we sit here today it’s difficult to argue that Andrews mooted the Lake View decision on its face.”

He also noted the Supreme Court issued and later recalled a mandate to the legislature to address it complied with the school funding directives of Lake View. “Given how clearly the court issued its mandate, I’m hesitant to say that such a pronounced holding could be overturned without direct precedent,” Miller said. “So, while Andrews probably overruled some past cases, Lake View was probably not among them.”


What happens to future cases along the lines of Lake View? What happens if a plaintiff attempts to sue the state for making changes to its funding formula in the future? Miller said the answers to those questions were less clear. “Currently, there’s more that we don’t know than we do [know] about the impact of Andrews on future educational challenges,” he said.

Rep. Lowery, who sits on the Education Committee, asked legislative staff how closely the Lake View’s adequacy mandate is tied to the state’s funding formula, which is laid out in a spreadsheet often called “the matrix.” Attorney Isaac Linam told him that the “matrix itself isn’t adequacy. The matrix is a tool that the General Assembly has used in order to get there, to decide what sort of funding you need to give the students an equal opportunity for an adequate education.” The legislature could do away with the matrix and come up with a different system, Linam said.

Sen. Joyce Elliott (D-Little Rock), one of the few lawmakers who was a member of the General Assembly when the resolution to Lake View was ongoing, asked Miller what would happen if one part of the Constitution — the sovereign immunity clause in Article 5, Sec. 20 — should conflict with another part of the document, such as the provisions requiring the state to provide an adequate and equitable system of public schools.

“What’s your notion again about what prevails on a case like that?” she asked.

Miller replied. “I’m hesitant to speak on that, and it’s going to be kind of a novel question that we’ve never had in this context when it comes up,” he said. He noted that a Pulaski County circuit court — that of Judge Wendell Griffen, incidentally — recently ruled on a case involving marijuana cultivation licenses, the dispensation of which are laid out in the voter-approved amendment to the Constitution legalizing medical cannabis, Amendment 98. Griffen rejected the sovereign immunity argument raised by the state attorney general’s office. However, as Miller noted, the Supreme Court has yet to weigh in on that case.

“We’re perhaps on that road with the medical marijuana cases and the disputes that may erupt out of that, because those are based on the Constitution itself. Those are going to be challenges against Amendment 98. So, hopefully, that might glean us something fairly quickly that might be helpful,” Miller said.

Here’s the presentation from the Bureau of Legislative Research attorneys on the Andrews decision and education funding.