The Arkansas Supreme Court six years ago uprooted decades-old precedent on when the state and state officials can be sued in a ruling that sent unease through the state’s legal community.
Subsequent decisions brought stability to the issue of sovereign immunity, but the upcoming elections for a pair of seats on Arkansas’ highest court could again have implications for the law.
Not only do the candidates have divergent views on whether the state can be made a defendant in its own courts, the unique circumstances around the March 5 judicial elections could leave two vacancies on the court to be filled by the governor.
Three sitting associate justices, Rhonda Wood, Barbara Webb and Karen Baker, and a former state legislator, Jay Martin, are running for chief justice.
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In the separate race for Position 2 on the court, Associate Justice Courtney Hudson is running against Miller County Circuit Judge Carlton Jones. (Hudson is running for the Position 2 seat because the staggering length of the term would allow her to serve more years in that position before reaching the mandatory judicial retirement age of 70.)
Early voting in both races begins Tuesday.
If Hudson and one of the sitting justices running for chief win their races, Gov. Sarah Huckabee Sanders would be responsible for nominating replacements.
That could be important because two sitting justices, Baker and Associate Justice Shawn Womack, take strict views on sovereign immunity, albeit for different reasons. Were Sanders to appoint justices with similarly strict views, the state of sovereign immunity law could again be thrown into flux.
What is sovereign immunity?
Sovereign immunity is the legal doctrine that the state cannot be sued in its own courts.
There are exceptions enumerated in the Constitution, and in practice, the courts have carved out several others.
For the two decades prior to 2018, the Supreme Court allowed the Arkansas General Assembly to waive the state’s immunity.
But in the 2018 case, The Board of Trustees of the University of Arkansas v. Matthew Andrews, the high court in a 5-2 decision overturned the 1996 precedent, ruling that the state Legislature cannot waive sovereign immunity.
In the majority opinion, Chief Justice John Dan Kemp referred to Article 5, Section 20, of the Arkansas Constitution of 1874:
“In reaching this conclusion, we interpret the constitutional provision, ‘The State of Arkansas shall never be made a defendant in any of her courts,’ precisely as it reads.”
5 years later, Arkansas sovereign immunity ruling looms over LEARNS litigation
The ruling rippled through Arkansas’ legal circles, and there were several unsuccessful efforts to propose a ballot initiative to amend the constitution to allow exceptions to the state’s sovereign immunity.
In subsequent cases, the high court has clarified that there are instances where the state can be sued to compel injunctive relief when a government entity acts illegally. However, claims for monetary relief have been diverted from the judicial system to the Arkansas Claims Commission.
For example, the court has allowed several Arkansas voters to sue the state over election laws they felt were unconstitutional, but suits that would require the state to pay a resident money have been effectively eliminated.
Josh Silverstein, a law professor at the University of Arkansas at Little Rock William H. Bowen School of Law, said the Arkansas Supreme Court over the last six years has adopted the same sovereign immunity approach as the U.S. Supreme Court.
He said the issue has reached some form of homeostasis after being in a state of uncertainty immediately after the 2018 Andrews decision.
“I think we’ve got some stability, but like any area of the law it could change as court personnel changes,” Silverstein said.
Silverstein, though, noted that if a stricter interpretation of sovereign immunity prevailed, he thinks there would be plenty of momentum to amend the Constitution.
Where the candidates for chief justice stand on sovereign immunity
Justice Karen Baker
Baker sharply dissented in Andrews, writing that the majority’s opinion “in a perfunctory fashion, overhauls over twenty years of our well established law on sovereign immunity and has effectively revived the antiquated doctrine that ‘the king can do no wrong,’” referring to the doctrine’s roots in English common law.
Since then Baker has held tightly to the doctrine of stare decisis — the legal principle of adhering to precedent — often dissenting that cases against the state should not be allowed to proceed in light of the court’s decision in Andrews.
She dissented from an opinion handed down months after Andrews that narrowed the court’s view of sovereign immunity. That holding, in Arkansas Oil and Gas Commission v. Hurd, stated that the suit challenging the Oil and Gas Commission’s decision on royalties was allowed because the government entity was acting as “a tribunal or a quasi-judicial decision-maker rather than a real party in interest.”
Baker dissented for several reasons, but her logic was summed up in the opening line of her analysis: “In Andrews, the court held that ‘never means never,’ therefore this suit is barred based on the broad language in Andrews.”
In the recent high-profile appeal of the case challenging the LEARNS Act’s effective date, Baker wrote in a concurring opinion that the lawsuit should’ve been summarily dismissed because “until Andrews is overruled, suit against the State is barred.”
Justice Barbara Webb
Webb’s position on sovereign immunity closely mirrors where the Supreme Court has settled in the six years since the Andrews decision.
Indeed, Webb wrote the majority opinion in the LEARNS Act case from which Baker dissented.
Webb believes that lawsuits against the state are prohibited when they seek monetary damages, except when allowed by another portion of the Constitution, like illegal exaction cases.
However, Webb has written that suits against the state can proceed when a state entity is alleged to have acted illegally and beyond its authority, as she wrote in the majority opinion in the LEARNS Act case.
“The pleadings in this case sufficiently raised factual allegations of illegal and unconstitutional State action, and the suit sought only declaratory and injunctive relief,” she opined. “Consequently, this matter is not barred by sovereign immunity.”
Justice Rhonda Wood
Wood’s position on sovereign immunity is similar to Webb’s, and Wood has given the most thorough explanation of the posture on sovereign immunity that the court has settled into since the Andrews decision.
In Thurston v. League of Women Voters of Arkansas, the League challenged several election laws it felt were unconstitutional, and Secretary of State John Thurston asked for the suit to be dismissed on the basis of sovereign immunity.
The court in 2022 ruled that sovereign immunity didn’t apply because the litigation asserted constitutional violations and asked for injunctive relief, not money damages.
In a lengthy concurrence, Wood explained in detail how she arrived at the view that has also been taken by the majority of the court for the last six years.
“Following Andrews, the language ‘the State shall never be made a defendant’ has been plucked out of context and misinterpreted in a way that could strip our citizens of vital constitutional protections,” Wood wrote. “This provision, when properly understood, limits money-damage claims against the State but allows declaratory and injunctive relief against state officials who act illegally or unconstitutionally.”
Wood alluded to the history of the doctrine of sovereign immunity in Arkansas, looking at the shift that occurred from the Constitution of 1868 to Arkansas’ current Constitution, ratified in 1874.
While the Legislature had been allowed to waive sovereign immunity, the people — at the time concerned with government spending and overreach — took that power away in 1874 to prevent lawmakers from subjecting the state to liability.
But it was that same prevailing attitude, Wood writes, that suggested the Constitution’s framers didn’t mean to bar suits against the state seeking injunctive relief.
What would citizens be left with if the governor enacted a series of plainly unconstitutional orders during a time of emergency? The judicial branch must be able to provide the citizens “constitutional harmony,” according to Wood.
“Sovereign-immunity absolutism would decimate the judicial branch and render Arkansas’s separation-of-powers perilously asymmetrical,” Wood wrote. “The framers would have abhorred this imbalance.”
Jay Martin
Jay Martin is the only chief justice candidate who has not served on the Supreme Court, so he has not rendered official opinions on the issue.
In response to questions from the Advocate, Martin said sovereign immunity bars the state from being sued in state courts, and citizens can take issues to the Arkansas Claims Commission, which can make monetary awards if it determines the state is liable for harm.
“As a judge, I will uphold the rule of law so long as statutes are not unconstitutional or current precedents do not violate a constitutional principle,” Martin said. “The idea of sovereign immunity seems at odds with the founding of our Republic and states. Sovereign Immunity came from the English common law when the sovereign was a king. In the United States, ‘We, the People’ are the sovereign, and as such, every elected official works for the people. As Chief Justice, I will never forget who the boss is.”
Associate justice race
Neither Justice Courtney Hudson nor Judge Carlton Jones take the strictest view of sovereign immunity, and both said exceptions exist.
“If a judgment in favor of a plaintiff would control the action of the State or subject it to liability, the suit is one against the State and is barred by sovereign immunity,” Hudson said. “A plaintiff therefore cannot recover money damages from the State. However, the AR Supreme Court has held that sovereign immunity does not apply to suits that are seeking only declaratory or injunctive relief and where a state actor is acting illegally or unconstitutionally.”
Jones added that he believes the state may waive its immunity.
“The State of Arkansas shall never be made defendant in any of her courts,” Jones said, citing Article 5 of the Arkansas Constitution. “There are some limited exceptions, and the State of Arkansas may waive its immunity.”
