JUSTICE RHONDA WOOD

The Arkansas Supreme Court on Thursday reversed and dismissed a minimum-wage lawsuit against the state based on a sovereign immunity defense raised by the attorney general’s office — even though the state had explicitly stated that it would not assert sovereign immunity when the suit first began.

The court was divided, with three justices issuing separate dissenting opinions, each warning the decision would further confuse an already tortured issue. The brief majority opinion, written by Associate Justice Rhonda Wood, refused to clarify the limits of sovereign immunity, tersely stating that “this is not the case for us to do so.” Yet at the same time, the majority cautioned in a footnote that the court’s recent rulings on state immunity “should not be interpreted too broadly,” though it gave no guidance as to what exactly that means.

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Associate Justices Jo Hart, Karen Baker and Courtney Goodson dissented.

Background: The court reversed longstanding precedent in January when it ruled that the Arkansas Constitution’s language forbidding lawsuits against the state must be more strictly interpreted. In that case, which also concerned the Arkansas Minimum Wage Act, the majority said the legislature lacked the authority to waive sovereign immunity (since the state Constitution trumps statutory law). But by relying on a literal reading of Article 5, Section 20 of the Constitution — “The State of Arkansas shall never be made defendant in any of her courts” — the January decision raised the question of whether the state can ever be sued, for any reason. Since that ruling, known as the Andrews decision, the attorney general’s office has mounted a sovereign immunity defense in case after case, though only a handful have made their way to the Supreme Court.

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Thursday’s ruling concerned two employees of the Arkansas Department of Veterans Affairs who said they were owed overtime pay. In oral arguments in May, an attorney for the plaintiffs acknowledged the Andrews decision but said the state shouldn’t be allowed to raise sovereign immunity as a defense, considering it hadn’t previously done so over the three-year history of the litigation. He cited a March case (a tax dispute between a Burger King franchise owner and the state) in which the justices held sovereign immunity was an affirmative defense that could not be raised for the first time on appeal.

Wood, writing for the majority, said the Andrews decision struck down the provision of the minimum wage law allowing a legal action to be brought against the state. The majority simply declined to address the issue of whether the attorney general’s office could raise sovereign immunity, given its the March decision stating it must be an affirmative defense. With that, the court reversed Pulaski County Circuit Judge Wendell Griffen’s ruling, which had denied the Veteran Affairs Department’s motion to dismiss on sovereign immunity.

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But in citing Andrews, the opinion also included this peculiar footnote:

We caution that Andrews should not be interpreted too broadly. The holding that the legislature may “never” authorize the state to be sued was in the application of the constitutional provision to a statutory act, [the Arkansas Minimum Wage Act], for monetary relief. Since Andrews, this court has not had the occasion to consider other actions against the state such as allegations that state actors are acting outside their constitutional duties, whether acting in a manner that is ultra vires, arbitrary, capricious, in bad faith, or refusing to perform ministerial duties.

Chief Justice Dan Kemp wrote a concurring opinion that stated in full:

I agree with the majority’s conclusion that we must reverse and dismiss this case pursuant to article 5, section 20 of the Arkansas Constitution. I write separately to state that the people of Arkansas have the ability by constitutional amendment to decide the rights and privileges granted in their fundamental document.

There was indeed an effort earlier this year to put a constitutional amendment before voters in November that would correct the sovereign immunity issue — but the attorney general’s office refused to certify it. It won’t be on the ballot in 2018.

Baker dissented from the Andrews decision and did so again on Thursday. In her dissent, which was joined by Hart, she criticized the majority’s footnote for attempting to finesse the issue of sovereign immunity without providing specifics. The footnote “simply conflicts with Andrews and illustrates the flaws in Andrews,” she wrote. Under the court’s new interpretation of sovereign immunity, it is “not free to pick and choose when it will apply. … The definition of ‘never’ is ‘at no time.’ “

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“In short, the majority has managed to tie into a knot the law on sovereign immunity and cannot untangle it,” she wrote.

Hart also wrote a separate dissent. In May, during oral arguments, she asked the attorney general’s office whether its argument meant that the state “could just hire people, work them for two weeks and then refuse to pay, and they could not bring suit against you?” On Thursday, she wrote:

Despite the overbroad holding in Andrews, it does not annul the right of a citizen to seek redress in the courts of this state if a public official has engaged in an ultra vires act. This right is not affected by article 5, section 20 and cannot be canceled by a decision of this court. I submit that hiring a person and refusing to pay that person in accordance with the laws of this state is an ultra vires act. Article 2, section 8 of the Arkansas Constitution guarantees that no person shall be denied his property without due process of law. A person’s lawfully earned wages are without question property. Accordingly, the circuit court did not err in refusing to dismiss this case pursuant to article 5, section 20.

Goodson recused from the Andrews case, though she said she had “misgivings” about its holdings in her dissent on Thursday. Goodson focused on the affirmative defense question, saying that Griffen’s dismissal should be upheld because the Veteran Affairs Department’s did not properly set forth sovereign immunity as an affirmative defense:

Unfortunately, today’s decision further muddies already murky waters. ADVA’s motion to dismiss was not the proper vehicle for asserting the affirmative defense of sovereign immunity when the motion was filed more than three years after it had filed its answer that expressly declined to assert sovereign immunity as a defense. Under thes circumstances, the circuit court’s order should be affirmed.