Constitutional Immunity

aka: State Sovereign Immunity

The principle of sovereign immunity is the concept, brought into American jurisprudence from English common law, that a government may not be a defendant in its own courts. While not mentioned in the original U.S. Constitution, it was added in the Eleventh Amendment. In the twenty-first century, the U.S. Supreme Court controversially expanded the Eleventh Amendment to serve also as a protection against individual American state governments being sued in federal courts against their will.

Most states, including Arkansas, also have embraced protections against being sued in state courts. The concept was first introduced in the Arkansas Constitution of 1868, but in a manner that gave the legislature wide power to control the breadth of the immunity, stating: “The general assembly shall direct by law in what manner and in what courts suits may be brought by and against the state.” Article 5, section 20, of the Constitution of 1874, however, employs what appears to be decidedly more absolute language: “the State of Arkansas shall never be made a defendant in any of her courts.” However, another section in the 1874 Constitution states that the “General Assembly shall from time to time provide for the payment of all just and legal debts of the State.”

To balance these two competing provisions, the state created the Arkansas Claims Commission in 1955. Previously, the legislature had dealt with claims against the state and its agencies on a case-by-case basis. The Claims Commission was created to lessen the amount of time dedicated to claims by the Arkansas General Assembly and to partly depoliticize the claims process. However, it is the General Assembly that ultimately makes decisions on claims following the fact-finding by the Claims Commission. For claims under $15,000, the agency against which the finding occurred may appeal to the General Assembly. All claims above that amount must be approved in the following legislative session; they are typically approved in a single piece of legislation. Moreover, the General Assembly appropriates only a certain amount of money in each budget to cover claims recommended by the commission. Originally a three-member body, the Claims Commission was increased to five members in 1985.

For much of the state’s history of jurisprudence, the Arkansas Supreme Court generally barred suits against the state, citing Article 5, section 20, even when the legislature was attempting to waive the protection. For instance, in 1956, the Arkansas Supreme Court overturned legislation creating a pathway for lawsuits against state parks. In Fairbanks v. Sheffield, the court majority wrote that Article 5, section 20, is “mandatory and cannot be waived by the General Assembly.” In 1996, however, the court reversed course and permitted the enforcement of legislation allowing taxpayers to sue the State of Arkansas after a claim for tax refund had been filed and refused or not acted upon. A variety of statutes followed that explicitly allowed claims against state agencies to be brought in state courts; the state Supreme Court consistently rejected sovereign immunity arguments in litigation regarding their application in cases involving state agencies.

In early 2018, however, sovereign immunity law was turned upside down by the Arkansas Supreme Court’s ruling in Board of Trustees of University of Arkansas v. Andrews. In that case, Matthew Andrews sued a community college that is part of the University of Arkansas System for back pay under the Arkansas minimum-wage law. Five justices on the court accepted a strict definition of sovereignty. Chief Justice Dan Kemp, writing for that majority, accepted a literalist interpretation of the language in the state constitution, saying that the court should accept Article 5, section 20 “precisely as it reads.”

As discussed in Justice Karen Baker’s dissent in the case, the Andrews decision raised immediate concerns about whether the state’s immunity could ever be waived and, indeed, whether state entities could ever be challenged in state court. However, in later decisions, a pattern emerged that allows sovereignty to be overridden in some cases but not others. Specifically, in cases involving monetary claims against the state—as in the Andrews case—sovereignty is absolute. For example, in Milligan v. Singer (2019), a five-justice majority blocked the case because it involved a claim for monetary damages under the Arkansas Whistle-Blower Act. However, in cases involving injunctive relief or illegal/unconstitutional actions by the state or state officials, where no monetary damages are involved, sovereign immunity does not block consideration of the issue. Justice Baker has been the most critical of the court’s work in this area of the law, accusing of majority of “pick[ing] and choos[ing] when an exception or exemption may apply.”

Despite these rulings, the issue of sovereign immunity remains in flux in the state, leading some to call for a constitutional amendment to clarify the issue by allowing the legislature to abrogate sovereign immunity. It does appear, however, that this series of actions by the Arkansas Supreme Court on sovereign immunity in cases with monetary claims has significantly ratcheted up the work of the Arkansas Claims Commission. By 2019, the number of claims had increased by about two-thirds from before the Andrews case.

For additional information:
Board of Trustees of University of Arkansas v. Andrews (2018). (accessed December 9, 2019).

Moritz, John. “High Court Affirms State’s Immunity.” Arkansas Democrat-Gazette, January 19, 2018, pp. 1A, 4A.

———. “Senator Seeks Amendment on Sovereign Immunity.” Arkansas Democrat-Gazette, January 15, 2019, pp. 1B, 5B.

———. “State Immunity to Figure in Case by Burger King.” Arkansas Democrat-Gazette, February 4, 2018, pp. 1A, 7A.

———. “State-Immunity Question Lingers Despite ’18 Ruling.” Arkansas Democrat-Gazette, July 5, 2019, pp. 1A, 4A.

Jay Barth
Hendrix College


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