Arkansas Supreme Court
Case Number: 2018 Ark. 122
Judge: SHAWN A. WOMACK
Court: Arkansas Supreme Court
Plaintiff's Attorney: Maryna Jackson, Ass’t Att’y Gen
Defendant's Attorney: Luther Oneal Sutter
Description: Barnes alleged in her complaint that she was terminated from her position with the
ACC for protesting discriminatory actions on behalf of her employer and participating in
an investigation designed to discover further discrimination. She alleged that her
termination was a violation of the Arkansas Whistle-Blower Act (“AWBA”) and asked for
damages, reinstatement, attorneys’ fees, costs, and all other relief available under the Act
and the law. ACC filed its answer and affirmatively pled that her claim was barred by
sovereign immunity. Thereafter, ACC filed a motion for judgment on the pleadings
pursuant to Ark. R. Civ. P. 12(c) arguing that it is an agency of the State and the General
Assembly could not validly waive the state’s sovereign immunity under the AWBA. Ark.
Code Ann. §§ 21-1-601 et seq. (Repl. 2016). The circuit court denied the motion and
I. Standard of Review
Rule 2(a)(10) of the Arkansas Rules of Appellate Procedure—Civil permits an appeal
from an interlocutory “order denying a motion to dismiss or for summary judgment based
on the defense of sovereign immunity or the immunity of a government official.” Bd. of Trs.
v. Andrews, 2018 Ark. 12, at 4, 535 S.W.3d 616, 618. The issue of whether a party is
immune from suit is purely a question of law and is reviewed de novo. Id.
II. Sovereign Immunity
Article 5 of the Arkansas Constitution is the Legislative Article, which, among other
things, outlines the powers, duties, responsibilities, and limitations of the General
Assembly. Article 5 section 20 provides that “[t]he State of Arkansas shall never be made
defendant in any of her courts.” In Andrews, the Board of Trustees of the University of
Arkansas argued that it was immune from suit for claims under the Arkansas Minimum
Wage Act based on sovereign immunity. Andrews, 2018 Ark. 12, at 2–3, 535 S.W.3d at
618. 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. Id. at
10–12, 535 S.W.3d at 622–23. 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.’” Id. at 10-11, 535 S.W.3d at 622. Regarding our previous decisions, this court
specifically stated, “To the extent that other cases conflict with this holding, we overrule
those opinions.” Id. at 11, 535 S.W.3d at 623.
As in the Minimum Wage Act, under the AWBA if there is unlawful adverse action
on behalf of a public employer then the employee may claim injunctive relief,
reinstatement, compensation, and attorneys’ fees. Ark. Code Ann. § 21-1-605 (Repl. 2016).
The General Assembly clearly intended to subject the State to liability under the AWBA.
Ark. Code Ann. § 21-1-602(5) (Repl. 2016); Smith v. Daniel, 2014 Ark. 519, at 6, 452
S.W.3d 575, 578–79 (when the General Assembly authorized a suit against a “public
employer” it expressly waived sovereign immunity). Per our holding in Andrews, to the
extent the legislature subjected the State to liability in the AWBA, it is prohibited by article
5, section 20 of the Arkansas Constitution. ACC was entitled to judgment as a matter of
law, and the circuit court erred when it denied ACC’s motion for judgment on the
pleadings based on sovereign immunity. We emphasize here, as in Andrews, that the only
issue before this court is whether the General Assembly’s choice to abrogate sovereign
immunity in the AWBA is prohibited by the constitution. We hold that it is. We therefore
reverse and dismiss the case
Reversed and dismissed.
WYNNE, J., concurs.
BAKER and HART, JJ., dissent.
ROBIN F. WYNNE, Justice, concurring. I agree with the majority that the legislative
waiver of the state’s sovereign immunity contained in the Arkansas Whistle-Blower Act
(AWBA), Arkansas Code Annotated sections 21-1-601 et seq. (Repl. 2016), is
unconstitutional for the reasons outlined in our decision in Board of Trustees v. Andrews,
2018 Ark. 12, 535 S.W.3d 616, a case involving the Arkansas Minimum Wage Act
(AMWA). I write separately to explain the reasoning behind my agreement.
Article 5, § 20 of the Arkansas Constitution prohibits the State of Arkansas from
being made a defendant in any of her courts. The purported waiver of sovereign immunity
contained in the AWBA seeks, by its own operation, to override Article 5, § 20. This case
and Andrews stand for the proposition that the legislature does not have the authority to
override Article 5, § 20. 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.
KAREN R. BAKER, Justice, dissenting. Justice Hart’s dissent ably sets out many of
the flaws in the majority’s opinion in Andrews, and I join it. However, I write separately to
point out the problems inherent in the broad sweeping language employed by the majority
in Andrews. In overruling decades of precedent, the majority in Andrews held that “. . . [W]e
interpret the constitutional provision, The State of Arkansas shall never be made a
defendant in any of her courts, precisely as it reads. The 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.’ See Ark. Const. of 1868, art. 5, § 45; Ark. Const. art. 5, § 20.” If “never” does
indeed mean never, as the majority held in Andrews, and made means cause to become -
rather than compelled, as I contended in my dissent in Andrews is the correct interpretation
- then this must be the law for everyone, all of the time. The majority is not free to pick
and choose when it will apply. “Never” does not mean unless an attorney for the state has
failed to raise the issue, as the majority held in Walther v. Flis Enterprises Inc., 2018 Ark. 64,
nor can it mean unless authorized by the judicial branch or the executive branch rather
than the legislative branch. Likewise, “never” cannot mean except when not ruled on by
the circuit court below. The definition of “never” is “at no time” Merriam–Webster’s
Collegiate Dictionary (9th ed.) (1991), or “not ever; on no occasion; at no time” American
Heritage Dictionary (4th ed.) (2000). Thus, because the Arkansas Supreme Court is a
“court” established by the Arkansas Constitution, the State of Arkansas cannot be caused
to become a defendant in this court, by this court, or in any other Arkansas court under
the reasoning employed by the majority in Andrews. Such an interpretation clearly conflicts
with other provisions of the constitution which is a fact the majority conveniently chose to
ignore in Andrews.
Then only twenty-three days after the mandate issued in Andrews, the majority
abandoned the holding of that case, and in Walther, without distinguishing Andrews or
doing a proper Constitutional analysis, held that sovereign immunity was waived by the
attorney for the State. Now, again without a proper constitutional analysis, the majority
returns to the holding in Andrews to dismiss Barnes’ case. While I recognize this is the
logical result dictated by the majority’s holding in Andrews, I cannot agree that it is a correct
analysis of the Arkansas constitution.
Accordingly, I dissent from the majority opinion.
HART, J., joins.
JOSEPHINE LINKER HART, Justice, dissenting. The majority’s discussion and
disposition of this case deprives Annette Barnes, and hereafter all the people of this state,
of access to their state courts to redress wrongs perpetrated at the hands of the state
government. The majority asserts that its decision in Board of Trustees of University of
Arkansas v. Andrews, 2018 Ark. 12, 535 S.W.3d 616 compels this conclusion. In Andrews,
the majority held that article 5, section 20 of the Arkansas Constitution, which provides
that “[t]he State of Arkansas shall never be made defendant in any of her courts,” prevents
the General Assembly from passing a law allowing the State to be sued in a state court,
couching its decision in terms of “sovereign immunity.” Andrews, supra. However, the
court reached this decision by failing to perform an adequate constitutional analysis.
When this court interprets a constitutional provision, it must analyze each
individual provision of the constitution alongside the others contained therein. See Ward
v. Priest, 350 Ark. 345, 382, 86 S.W.3d 884, 898 (2002) (“It is a rule of universal
application that the Constitution must be considered as a whole, and that, to get the
meaning of any part of it, we must read it in the light of other provisions relating to the
same subject.”). Every legislative act carries a strong presumption of constitutionality. Ark.
Dep't of Corr. v. Bailey, 368 Ark. 518, 247 S.W.3d 851 (2007). The party challenging a
statute’s constitutionality bears the burden of proving that the statute is unconstitutional,
and all doubts will be resolved in favor of the statute’s constitutionality. See City of Cave
Springs v. City of Rogers, 343 Ark. 652, 37 S.W.3d 607 (2001). A statute will be struck down
only when there is a clear incompatibility between the statute and the constitution. Id.
The Andrews majority ignored the facts that article 2 guarantees every citizen a
judicial remedy for wrongs suffered at the hands of the State, and that article 2 prohibits
the State from using article 5, section 20 as a shield against accountability for violating the
rights guaranteed by article 2. Today, this court should overturn Andrews; instead, the
majority holds that the General Assembly is constitutionally incapable of abrogating its
own sovereign immunity and that the Arkansas Whistle-Blower Act (the “AWBA”),
codified at Arkansas Code Annotated §§ 21-1-601 et seq., is an example of such
unconstitutional legislative abrogation. This rationale would effectively strike down the
AWBA, which provides State employees a cause of action against their employers when
those employees are brave enough to speak out against unlawful or wasteful practices on
the part of their employers and are then subjected to adverse employment consequences
for having done so.
I. Sovereign Immunity and Article 5, Section 20 of the 1874 Arkansas Constitution
Sovereign Immunity holds an interesting place in the American legal system.
Hailing from pre-colonial England, it is said to be rooted in the Latin phrase rex non potest
peccare: “the king can do no wrong.” The principle is generally understood to stand for
the proposition that the sovereign cannot be sued unless it has specifically consented to
suit. Obviously, there is no “king” of the United States of America; in fact, this country
fought the Revolutionary War to rid itself of such a regime. Accordingly, some consider
sovereign immunity an “anachronistic relic” that should be “eliminated from American
law.” Erwin Chemerinsky, Against Sovereign Immunity, 53 Stan. L. Rev. 1201, 1201–02
(2001). Even so, the doctrine of sovereign immunity has lived on in this country through
its application by the courts. As the United States Supreme Court has observed, “[T]he
principle has never been discussed or the reasons for it given, but it has always been treated
as an established doctrine.” United States v. Lee, 106 U.S. 196, 207 (1882). Under either
pre-colonial England’s conception of sovereign immunity1 or that which has been afforded
1Even under the pre-colonial conception of sovereign immunity, it was plain that the King had the power to subject the Crown to liability. Sir William Blackstone said the following with regard to sovereign immunity:
to the individual States of this country2, the “sovereign” has the absolute authority to waive
its immunity, if it wishes to do so.
The phrase “sovereign immunity” does not appear in the Arkansas Constitution.
However, the Arkansas Supreme Court has confounded the concept of sovereign
immunity with article 5, section 20 of the Arkansas Constitution, which provides that
“(t)he State of Arkansas shall never be made defendant in any of her courts.” In both
Andrews and the case-at-bar, the majority latches on with a death grip to these fourteen
words, elevating them above the remainder of the Arkansas Constitution, and opines that
harms committed by State actors against the people of this State are shielded from
accountability by “sovereign immunity.” Further, the majority holds that article 5, section
That the king can do no wrong, is a necessary and fundamental principle of the English constitution: meaning only, . . . that in the first place, whatever may be amiss in the conduct of public affairs is not chargeable personally on the king . . .; and, secondly, that the prerogative of the crown extends not to do any injury . . . . Whenever therefore it happens, that, by misinformation or inadvertence, the crown hath been induced to invade the private rights of any of its subjects, though no action will lie against the sovereign, . . . yet the law hath furnished the subject with a decent and respectful mode of removing that invasion, by informing the king of the true state of the matter in dispute: and, as it presumes to know of an injury and to redress it are inseparable in the royal breast, it then issues as of course, in the king’s own name, his orders to his judges to do justice to the party aggrieved.
William Blackstone, Commentaries on the Laws of England, Book Third 254–55 (St. George Tucker ed. 1803). 2See, e.g., Alden v. Maine, 527 U.S. 706, 755 (1999) (an individual State’s sovereign immunity “bars suits only in the absence of consent. Many States, on their own initiative, have enacted statutes consenting to a wide variety of suits.”).
20 prohibits the General Assembly from abrogating that immunity to facilitate redress of
the harms inflicted by those State actors upon the people. This holding evinces a complete
lack of understanding of sovereign immunity as a general matter, and amounts to a studied
indifference to all other provisions of the Arkansas Constitution, as well as our rules for
interpreting the same. Article 5, section 20 is by no means the mechanism that affords the
State of Arkansas sovereign immunity; instead, it is simply one single provision found in
the legislative article (article 5) of the Arkansas Constitution that must be interpreted
alongside each of the other provisions contained throughout the same constitution.
Over the years, this court has acknowledged what it describes as “sovereign
immunity,” pointing to article 5, section 20, but our opinions on this subject have not
yielded any consistently enforceable rule for purposes of stare decisis. Some of our cases
suggest that article 5, 20 means the State of Arkansas cannot be sued in an Arkansas state
court under any circumstances whatsoever. See, e.g., Ark. State Highway Comm’n v. Nelson
Bros., 191 Ark. 629, 634, 636, 87 S.W.2d 394, 396 (1935) (“The language of the quoted
prohibition is so precise and clear as to admit of no room for interpretation or for any
refinement of judicial construction which would obscure or change the common and
ordinary meaning of the words employed . . . . No one has a vested right to sue the state
even when that privilege may be, and has been, given[.]”). Other cases have suggested that
there are three exceptions to article 5, section 20: (1) when the State is the moving party
seeking specific relief, (2) when a plaintiff seeks to enjoin a state official from acting
unlawfully, and (3) when an act of the legislature has created a waiver of immunity. See,
e.g., Mitchem v. Hobbs, 2014 Ark. 233. More recently, our cases have suggested that the
“sovereign immunity” afforded by article 5, section 20 is an affirmative defense that can be
raised or waived whenever the State is haled into court. Walther v. FLIS Enters., Inc., 2018
Ark. 64, __ S.W.3d __.
In Andrews, this court held that article 5, section 20’s purported conferral of
sovereign immunity upon the State of Arkansas prohibits the Arkansas General Assembly
from enacting any legislation that could lead to a citizen haling the State or any of its
instrumentalities into a State court. Here, the majority holds that Andrews controls the
outcome of this case, since Barnes’s complaint, which alleges racial discrimination and
unlawful retaliation, is brought pursuant to the AWBA, a product of the General
I submit that this court’s prior decisions discussing article 5, section 20 are in
irreconcilable conflict, and that Andrews only compounded that conflict. As discussed in
greater detail herein, the proper resolution to this case is to simply read the applicable
provisions of the 1874 Arkansas Constitution as they were written, something that the
majority has failed to do in either Andrews or the case at bar. One cannot read article 5,
section 20 in isolation. Instead, as noted above, one must analyze each individual
provision of our constitution alongside the others contained therein. See Ward, supra.
When one appropriately interprets our constitution as a whole, it is apparent that article 5,
section 20 does not prevent Barnes from pursuing judicial redress of her asserted
grievances in this case.
II. Suits Against the State of Arkansas
Indeed, article 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.
The majority in Andrews, without any factual justification, supported its decision by
insisting that its analysis comported with the historical data surrounding the drafting of the
1874 Constitution. The majority then only made a facial comparison between article 5,
section 20 of the 1874 Constitution and article 5, section 45 of the 1868 Constitution.
The 1868 version provided that “[t]he general assembly shall direct by law in what manner
and in what courts suits may be brought by and against the state,” while the 1874 version
provides that “[t]he State of Arkansas shall never be made defendant in any of her courts.”
The majority held that the distinction between article 5, section 45 of the 1868
Constitution and article 5, section 20 of the 1874 Constitution necessarily indicates that
the drafters of the latter version intended to prevent any legislatively approved action
against the State in a court of law. However, in both Andrews and the case at bar, the
majority declines to account for the actual historical context in which the 1874
Constitution was ratified, and altogether fails to consider another far more important
distinction between the 1868 and 1874 Arkansas Constitutions: the Declaration of Rights
contained in article 2 of the 1874 Constitution.
The years between 1863 and 1874 encapsulate a tumultuous period in our State’s
history. There are different ways to view our state’s history during the war years and our
state’s subsequent military occupation. However, there can be no dispute that the
Arkansas state government was known during the Reconstruction Era for fraud, cronyism,
martial law, disenfranchisement, and other abuses of government power. Thus, when
Arkansas ratified its current constitution in 1874, it included numerous provisions to
protect the individual rights and liberties of the people, and to prevent the government,
specifically, from infringing upon those same rights and liberties.
III. Article 2’s Declaration of Rights
Article 2 of the 1874 Arkansas Constitution sets out a “Declaration of Rights”
specifically reserved and retained by the people of this State. Article 2’s first provisions
address the people’s role in relation to their state government. Article 2, section 1 dictates
that “[a]ll political power is inherent in the people and government is instituted for their
protection, security and benefit; and they have the right to alter, reform or abolish the
same, in such manner as they may think proper.” Article 2, section 2 explains that “[t]o
secure these rights[,] governments are instituted among men, deriving their just powers
from the consent of the governed.” Article 2 then sets forth many principles with respect
to the rights and freedoms enjoyed by Arkansas citizens, and exempts those rights and
freedoms from the authority delegated to the state government.
For example, and of particular significance with respect to the AWBA, article 2,
section 6 (the “Free Speech” clause) provides that “[t]he free communication of thoughts
and opinions, is one of the invaluable rights of man.” Equally significant with respect to
Barnes’s AWBA claim, which alleges racially discriminatory actions on the part of the
State, is article 2, section 3 (the “Equality Clause”), which provides that “[t]he equality of
all persons before the law is recognized, and shall ever remain inviolate; nor shall any
citizen ever be deprived of any right, privilege or immunity; nor exempted from any burden
or duty, on account of race, color or previous condition.”
Additionally, it is plainly apparent from the language of article 2 that the drafters
intended to protect the people’s ability to pursue these rights and principles, specifically
through courtroom litigation. Article 2, section 13 (the “Legal Remedy Clause”) 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.” Article 2, section 4 (the “Petition Clause”) provides that the
people’s right “to petition, by address or remonstrance, the government, or any department
thereof, shall never be abridged.”3 Furthermore, article 2, section 7 (the “Jury Trial
3See James E. Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 Nw. U. L. Rev. 899 (1997). In this article, Professor Pfander convincingly argues that the Petition Clause of the United States Constitution (the language of which, like that of the Petition Clause contained in the Arkansas Constitution, is not limited to petitions directed toward the legislature, but to the “Government” as a general matter) was intended to provide a right to pursue judicial remedies against unlawful government conduct. This right is actually far more easily realized from Arkansas’s Petition Clause, which specifically protects the right to petition “the government, or any department thereof.” Ark. Const. art. 2, section 4. The Arkansas Constitution divides the powers of government specifically among “three distinct departments, each of them to be confided to a separate body of magistracy, to-wit: Those which are legislative, to one, those which are executive, to another, and those which are judicial, to another. Ark. Const. art. 4, section 1 (emphasis
Clause”) 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[.]”
Perhaps most importantly, each of the principles enumerated in article 2 supersedes
all other provisions of the 1874 Arkansas Constitution. While the majority in Andrews
acknowledged the distinction between article 5, section 45 of the 1868 Constitution and
article 5, section 20 of the 1874 Constitution, it failed to consider another distinction that
casts the latter provision in a very different light: the addition of article 2, section 29 to the
1874 Constitution. Article 2, section 29 (the “Reservation of Powers Clause”), provides as
This enumeration of rights shall not be construed to deny or disparage others retained by the people; and to guard against any encroachments on the rights herein retained, or any transgression of any of the higher powers herein delegated, we declare that everything in this article is excepted out of the general powers of the government;
and shall forever remain inviolate; and that all laws contrary thereto, or to the other provisions herein contained, shall be void.
(Emphasis added). No such provision existed in the 1868 Constitution. Therefore, under
the 1874 Constitution, no law or power delegated elsewhere in the 1874 Constitution can
operate to counteract the principles enumerated in article 2.
added). Thus, Arkansans enjoy a constitutional right to petition an Arkansas court by “address or remonstrance.” Ark. Const. art. 2, § 4. Black’s Law Dictionary provides three definitions of “remonstrance”: “1. A presentation of reasons for opposition or grievance. 2. A formal document stating reasons for opposition or grievance. 3. A formal complaint or protest against governmental policy, actions, or officials.” Remonstrance, Black’s Law Dictionary (10th ed. 2014).
When we construe each of these provisions together and apply them to the case-at
bar, there can be no argument that the drafters intended article 5, section 20 to prevent
Barnes from pursuing the relief she seeks in this case. Plainly, the State cannot use article
5, section 20 to shield against accountability for violations of the rights exempted from
government authority by article 2; this constitutes a “transgression of the higher powers”
delegated to the State by the 1874 Constitution, specifically prohibited by article 2, section
On the other hand, the AWBA directly advances the rights and principles
enumerated in article 2. The AWBA protects free speech and the ability to enforce
government accountability, principles that are specifically enumerated in article 2. See Ark.
Const. article 2, §§ 1, 2, 6, 29. The AWBA’s advancement of article 2 is particularly
apparent in this case, as Barnes’s complaint alleges racially discriminatory actions on the
part of the State. See Ark. Const. art. 2, § 3. It is axiomatic, therefore, that article 5,
section 20 cannot operate to prohibit the people, through their elected government
officials, from taking action to facilitate the implementation of the principles enumerated
in article 2 by enacting legislation such as the AWBA.
IV. The Claims Commission
The State would avoid this conclusion. Citing article 5, section 20, the State argues
that this provision affords the State sovereign immunity and that the General Assembly is
incapable of waiving that immunity, though it concedes that there are scenarios in which
immunity “might” not be applicable, such as when one seeks to enjoin the state from
acting unlawfully or unconstitutionally. However, the State steadfastly maintains that there
can be no legal action against the state that could in any way put the state’s coffers at risk.
Effectively, the State, with complete disdain for any of the rights guaranteed to the people
by article 2, argues that when the actions of any of its departments or employees violate the
rights of its citizens in a manner that causes those citizens damages, those same citizens
must bear the weight of those damages without any judicially enforceable recompense.
If that result seems draconian (it inescapably is), the majority in Andrews and the
State in this case assert that so-deprived individuals have an adequate remedy with the
Arkansas Claims Commission (the “Claims Commission”). The Claims Commission is a
nonjudicial forum created by the General Assembly where the merits and value of any
claim are within the discretion of governor-appointed and senate-confirmed
commissioners. The State’s argument here is entirely contradictory. It effectively amounts
to “the General Assembly cannot allow Arkansas citizens to go to court where they could
potentially collect money for injuries suffered at the hands of the State, so instead, let us
send them to General Assembly’s commission where they could potentially collect money
for injuries suffered at the hands of the State.”
Regardless of this argument’s logical fallacy, sending these individuals to the Claims
Commission does not solve the problem because this procedure unquestionably violates
the rights guaranteed by the Arkansas Constitution, particularly the right to a jury trial
guaranteed by article 2, section 7. This court has held that article 5, section 20 cannot
supply a basis for infringing upon an individual’s right to a jury trial absent a constitutional
amendment specifically allowing such infringement, even if the individual could have
taken his or her claim to the Claims Commission. Grimmett v. Digby, 267 Ark. 192, 193–
94, 589 S.W.2d 579, 580–81 (1979) (rejecting attorney general’s argument that article 5,
section 20 dictated that Claims Commission had exclusive jurisdiction of plaintiff’s tort
claim to recover damages for vehicular accident caused by state trooper, as such a ruling
would violate article 2, sections 7 and 13, absent a constitutional amendment so
permitting). No such amendment exists in this case. Simply put, the very notion that the
State would make this argument is contrary to any conception of a government “instituted
for [the people’s] protection, security and benefit[.]” Ark. Const. art. 2, § 1.
In actuality, the legislature’s establishment of the Claims Commission appears to be
precisely what article 5, section 20 was intended to prohibit. Again, article 5 sets out the
framework and procedures of the General Assembly, and it was implemented with the rest
of the 1874 Constitution during a time when the State government was known for
cronyism, fraud, and lack of accountability. These are the very same criticisms that have
been levied against the Claims Commission, a legislatively created forum not subject to any
form of judicial review. See, e.g., Rodney A. Smolla, Politics and Due Process Don’t Mix:
Should the State Claims Commission be Abolished, 1986 Ark. L. Notes 43, 49 (1986) (“The
Commission lacks the single most important component of the judicial function—indeed,
the single most important component in the very notion of a tribunal able to dispense
meaningful due process of law in an adjudicatory setting: independence.”); Brief for
Respondent at 5, Grimmett v. Digby, 267 Ark. 192, 589 S.W.2d 579 (1979) (“However, the
State Claims commission for years has arbitrarily and as a matter of course always denied
subrogation claims filed by insurance companies.”); Jason Paul Bailey, Paying the Price for
Injustice: The Case for Enacting a Wrongful Conviction Compensation Statute in Arkansas, 2015
Ark. L. Notes 1814, n.32 (noting the “harsh criticism” met by the Claims Commission
review committee’s decision to reverse award in wrongful-imprisonment case, which
characterized attorney general’s arguments for reversal as “unethical tactics to fight a man
who is merely seeking compensation for being wrongly convicted”). One can always hope
that the commissioners will pursue their responsibilities zealously and objectively, but the
reality is that the Claims Commission acts as both judge and jury without any risk of actual
independent judicial revieW.
Outcome: In any case, it is absolutely ludicrous to suggest that the drafters of the 1874 Constitution, considering the context in which it was drafted, intended to guarantee the rights enumerated in article 2 and to except those rights from interference by the state government, and then simultaneously intended to take away the people’s ability to judicially enforce those rights with article 5, section 20. Article 2 trumps article 5, and the
AWBA is tailored to directly advance the principles enumerated in article 2, so article 5, section 20 cannot inhibit the AWBA’s operation. In light of these considerations, it would seem that implementing the AWBA is exactly the sort of function the drafters of our constitution envisioned the General Assembly performing for the people of the State of Arkansas.
Instead, by looking solely to article 5, section 20 and excluding any other
constitutional provision that would give it context, the majority would insulate the State
from accountability for any violation of the individual rights enjoyed by the people of
Arkansas, and eliminate any judicial mechanism that might be implemented to protect the
same. The majority’s decision inescapably violates article 2, section 29 and is therefore
“void” and without effect. Ark. Const. art. 2, section 29.
The majority’s refusal to even address the other provisions of the constitution finds
no basis in our rules of constitutional interpretation or in the circumstances of this
particular case. It is a rule of “universal application” that any constitutional analysis must
interpret each specific constitutional provision alongside the other provisions of the same
constitution. See Ward, supra. In fact, the State specifically argues in its brief that this court
should be conducting such an analysis. See Brief of Appellant at 6, 10–15. Furthermore,
the lack of detail contained in the trial court’s order denying the State’s motion for
judgment on the pleadings supplies no basis for the majority’s refusal to address the other
applicable provisions of the constitution. Punishing Barnes, the appellee and prevailing
party below, because the trial court did not go into great detail in rejecting an argument
presented by the State, the appellant seeking reversal of the trial court’s decision, is
absolutely contrary to this court’s jurisprudence. While this court requires an appellant to
raise an issue to the trial court and to obtain a ruling on that issue before this court will
address that issue on appeal, this court can affirm a trial court’s decision for any legitimate
reason, without regard to whether the specific reason for affirming was raised or ruled
upon below. See, e.g., Alexander v. Chapman, 299 Ark. 126, 130, 771 S.W.2d 744, 746–47
(1989) (“It also makes no difference that the trial court’s decision to overrule the
appellant's objection was not based on the law of the case doctrine. We will affirm the
court’s ruling if it is correct for any reason. The appellee was not bound to present to the
trial court every conceivable reason for overruling the appellant’s objection.”) (internal
citations omitted). In short, the majority’s refusal to consider any other provisions of the
constitution is entirely baseless.
In reality, the majority is attempting to walk back from the implications of Andrews.
The majority “emphasize[s] here, as in Andrews, that the only issue before this court is
whether the General Assembly’s choice to abrogate sovereign immunity in the AWBA is
prohibited by the constitution. We hold that it is.” The majority’s efforts to limit its
holding confirm that it has missed the point entirely. Barnes’s AWBA claim does not turn
upon whether the General Assembly can abrogate the State’s sovereign immunity because
she never needed any such abrogation to bring an AWBA claim in the first place. The
drafters specifically excepted the provisions of article 2, which the AWBA directly
advances, from inhibition by any power delegated elsewhere in the constitution. Ark
Const. art. 2, section 29.
Overall, the AWBA directly advances the rights and principles enumerated in article
2. It does not violate article 5, section 20. I would overrule Andrews, affirm the trial court’s
decision, and remand this case for trial.