The state Supreme Court heard oral arguments Thursday morning in a minimum wage-related case that could further define its new interpretation of the sovereign immunity provision of the Arkansas Constitution. In a 5-2 decision in January, the court reversed longstanding precedent by saying the legislature could not waive sovereign immunity through statute, thus raising questions about when (or if ever) the state can be sued.

Since then, the sovereign immunity question has surfaced in issue after issue. Can the state medical marijuana commission’s method of awarding lucrative cultivation licenses be challenged? If citizens aggrieved by a decision of the State Plant Board cannot sue the state, have they been denied due process? Is the state’s Whistleblower Act negated? What about the Lake View decision on school funding?

The case before the court Thursday concerns two employees of the Arkansas Department of Veterans Affairs, Diane Mallett and Joseph Fabits, who say the ADVA unfairly denied them compensation for working overtime and on their lunch breaks. The litigation has lasted for over three years, during which time the case has appeared before the Supreme Court once before. (A trial court judge had allowed it to proceed as a class action; the high court agreed with the ADVA that the class certification was improper and remanded it back to the trial court.) Now, the state attorney general’s office argues that the state should be immune from the suit, despite saying in a previous pleading the sovereign immunity defense did not apply.

Justice Jo Hart, who is one of the two justices who dissented from the majority’s broader interpretation of sovereign immunity in January, had sharp words for state attorney Jennifer Merritt during oral arguments on Thursday.


“If you had not paid your employees at all, would they be entitled to sue?” Hart asked. “You could just hire people, work them for two weeks and then refuse to pay, and they could not bring suit against you?

“Not in state court,” Merritt replied. Employees can still seek a remedy from the state Claims Commission, she noted.


“You are supposedly running a nursing home for veterans, and you’re saying the people that care for them can be underpaid for the state and have nothing [they can] do,” Hart told Merritt later.

The case in January that resulted in the Supreme Court redefining sovereign immunity was itself about the minimum wage law. It’s referred to as the “Andrews” decision after its plaintiff, a community college bookstore employee who sought overtime compensation from the University of Arkansas System. In the case before the court on Thursday, the ADVA employees recognized that the Andrews decision definitely removed the minimum wage law’s waiver of sovereign immunity granted by the legislature — but said the state had itself waived sovereign immunity as a defense by not raising the issue earlier in the litigation.

Tim Steadman, an attorney for Mallett and Fabits, said the state shouldn’t be allowed to invoke sovereign immunity as a new defense. “After litigating the case for three years, the state filed a motion [in September] … stating that they were immune,” Steadman said. He cited a March case (a tax dispute between a Burger King franchise owner and the state) in which the court held sovereign immunity was an affirmative defense that could not be raised for the first time on appeal.

Justice Rhonda Wood pointed out to Merritt, the AG attorney, that the state had “explicitly stated that you would not assert the defense of sovereign immunity” earlier in the suit. Merritt acknowledged that was true, but said the state had the right to amend its answer, and it did so in light of a “novel argument” then being raised in the Andrews case regarding sovereign immunity. (At the time, the Supreme Court had not yet ruled on Andrews.) Moreover, she said, the state itself can’t waive a provision of the state Constitution any more than the legislature can do so.


“Have we said that the executive branch cannot waive sovereign immunity?” Woods asked.

“Andrews was clearly related to the legislative article,” Merritt said. “But this court has said in several cases that … the state cannot give its consent to action against it. … It’s not just legislative; it’s any branch.” She also noted that the Andrews case had gone through similarly lengthy litigation before the court handed down its landmark ruling in January.

Though the case involving the ADVA employees will likely come down to narrow legal issues, the larger questions of sovereign immunity loom overhead. At one point, Chief Justice Dan Kemp — who joined the majority opinion in Andrews — asked Merritt whether the Constitution’s sovereign immunity provision prevented any limits at all from being placed on state power, considering how broadly it is stated. (“The State of Arkansas shall never be made defendant in any of her courts.”)

“What keeps Article 5, Section 20 from … turning Arkansas into a totalitarian state like North Korea?” Kemp asked.

Merritt said that “the Constitution contains a variety of provisions to protect the people from government. … The people reserve the right to amend the constitution, so if the people want to change the sovereign immunity provision, they certainly have the ability to do that.”

So far, the new sovereign immunity interpretation in Andrews has been applied just to monetary judgments. Other cases winding their way to the Supreme Court — such as the awarding of marijuana cultivation permits — will put to the test what happens when citizens challenge the constitutionality of the state’s actions in court. Steadman, in his brief, argued that the court should consider reversing itself on the Andrews decision and holding that legislative waiver of sovereign immunity is permissible after all. From the filing:

The sovereign immunity analysis in Andrews appears broad and limitless and will likely have unintended consequences. For example, if Article V, Section 20 means that that the state cannot consent to suit against it, there is no just reason why it cannot be made a defendant in a suit seeking injunctive relief. There is also no reason why the State can be forced to comply with the Freedom of Information Act. Likewise, there is no reason why the state’s decision to initiate litigation should allow the defending party to assert a counterclaim against the state.

Further, this Court’s interpretation of Article 5 in Andrews, conflicts with Article 2. The Arkansas Constitution gives its citizens the right to trial by jury and the right to a remedy in the laws. See Ark. Const. Art. 2, §§ 7, 13. Andrews, however, precludes Arkansas’ citizens from exercising their right to a jury trial and their right to a remedy in the laws when the opposing party is an arm of the state. Andrews’ broad interpretation of sovereign immunity does not reconcile with the other concerns and goals of the Arkansas Constitution. Simply put – the Constitution protects the people from the government, not the government from the people.