The Arkansas Supreme Court today dismissed a complaint by a former employee of Treasurer Dennis Milligan that was brought under the state whistleblower statute. The court said Milligan was entitled to sovereign immunity and repeated an earlier ruling that the legislature’s waiver of that protection in the whistleblower law was unconstitutional.
David Singer has brought several actions against Jim Harris, a former aide to Milligan, and Milligan over his firing. He’s alleged they defamed him. He said he was fired for raising concerns about spending of public money and observance of campaign finance rules. Milligan said the suit should be dismissed on ground of sovereign immunity, the constitutional protection against lawsuits against the state.
Judge Chris Piazza denied Milligan’s motion for dismissal. But the Supreme Court disagreed. It said neither the legislature, nor the governor by his signature of the law, could waive sovereign immunity. And it rejected his argument that rulings to that effect unconstitutionally overrode another section of the Constitution that guarantees a right for redress of injuries or wrongs. The Court noted, as it has in recent developments on sovereign immunity law that reversed decades of precedent, that the state Claims Commission exists as an outlet to seek compensation for damage by the state.
Justices Karen Baker and Jo Hart dissented. Baker cited her dissent in the earlier reversal of precedent by the court in a University of Arkansas case in a dispute over wages. Hart also spoke of that case, the Andrews case. Hart wrote:
Effectively, a majority of this court held that the State of Arkansas does not have to pay its employees minimum wage, or at least that no court can make the State pay its employees their wages when it has declined to do so. As one circuit judge put it shortly thereafter, this was a “sea change” that significantly abridged the then-acknowledged exceptions to sovereign immunity—according to Andrews, citizens can no longer recover any legal damages from the State, even if the State has passed a law that specifically says so. Instead, the majority opined, these damaged individuals can try their luck with the Arkansas Claims Commission, a politically created forum where the merits and value of any claim are within the discretion of appointed commissioners, and not subject to the constitutional guarantees of a jury trial or a legal remedy.
She said the court had not made a proper constitutional analysis in the Andrews case.
This analysis would show that the protection afforded to the State of Arkansas through article 5, section 20 of the Arkansas Constitution––“[th]e State of Arkansas shall never be made defendant in any of her courts”––is not enforceable against the “Declaration of Rights” guaranteed to the citizens by article 2 of the very same Arkansas Constitution.
For example, article 2, section 13 provides that “[e]very person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase; completely, and without denial; promptly and without delay; conformably to the laws.” Additionally, article 2, section 7 provides that “[t]he right of trial by jury shall remain inviolate, and shall extend to all cases at law. . . . This amendment to the Constitution of Arkansas shall be self-executing and require no enabling act[.]” Most importantly, article 2, section 29 excepts these rights away from interference through the powers of State government—“we declare that everything in this article is excepted out of the general powers of the government.”