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5 years later, Arkansas sovereign immunity ruling looms over LEARNS litigation


5 years later, Arkansas sovereign immunity ruling looms over LEARNS litigation

Jun 07, 2023 | 5:03 pm ET
By Hunter Field
5 years later, Arkansas sovereign immunity ruling looms over LEARNS litigation
The Arkansas Supreme Court building in Little Rock. (John Sykes/Arkansas Advocate)

In a decision almost five years ago, the Arkansas Supreme Court concluded that Arkansans could not sue their state government in “her own courts,” overturning two decades of precedent and sending Arkansas’ legal community into a frenzy.

That decision, in The Board of Trustees of the University of Arkansas v. Matthew Andrews, is now inextricably linked to a lawsuit filed last month challenging the effective date of Gov. Sarah Huckabee Sanders’ chief legislative achievement, the LEARNS Act

Not only has Arkansas Attorney General Tim Griffin cited the majority’s holding in Andrews as reason the LEARNS suit should be dismissed, the case presents the state’s High Court with a near identical question:

Should decades of legislative practice be thrown out in favor of a strict reading of the Arkansas Constitution?

“The war over sovereign immunity is still raging, and this has turned out to be the latest battle,” said Little Rock attorney Chris Burks, who worked at the firm that represented Matthew Andrews in 2018.

Upsetting the apple cart

In Matthews, a former bookstore manager at Mena’s Rich Mountain Community College sued the University of Arkansas System for overtime pay under the Arkansas Minimum Wage Act.

The Minimum Wage Act was one of several laws enacted by the General Assembly that waived the sovereign immunity provision in the Arkansas Constitution, attempting to give employees who had been shortchange legal recourse.

The state Supreme Court in a 5-2 decision overturned a precedent set in 1996, ruling that the state Legislature does not have the authority to 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.”

The ruling sent shockwaves through Arkansas’ legal circles. There were even several short-lived efforts to propose a ballot initiative to amend the constitution to allow exceptions to the state’s sovereign immunity.

Citing sovereign immunity, Arkansas AG calls on court to dismiss LEARNS Act lawsuit

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.

Still, Burks said the Matthews decision has led to five years of bad case law by “frontloading” cases before the Supreme Court, which now must rule on suits brought against the state before a trial is held, witnesses testify and evidence is gathered.

“It’s a total flip of how cases should be handled,” he said.

LEARNS similarities

Several legal scholars agreed that the LEARNS lawsuit presents the court with a similar scenario. 

The plaintiffs contend that in passing the massive education overhaul the Arkansas House and Senate failed to take separate roll-call votes on the bill’s emergency clause, as required by the Arkansas Constitution. 

As has long been the practice, both chambers voted on the bill and the emergency clause at the same time, but recording the votes separately in their respective journals. 

The state has argued that it’s the Legislature’s prerogative to decide how it votes, and that procedure amounts to separate votes. 

What is an emergency clause?

An emergency clause allows a new state law to take effect immediately. 

The Arkansas Constitution requires emergency clauses to be passed by at least two thirds of the members from both the state House and Senate.

Typically, bills passed by the Arkansas General Assembly become law 91 days after the legislative session’s end. 

The 91-day waiting period allows time for any adjustments that need to be made in preparation for a law change. 

It also allows citizens time to petition for a ballot referendum on any law. In the case of a referendum effort, a law without an emergency clause does not become effective until the statewide referendum is held.

Danielle Weatherby, an associate professor at the University of Arkansas School of Law, laid out the issue before the court in a manner similar to Andrews.

“If they’re correct that this is a common practice, then the question becomes: Does the common practice supplant what is written in plain language in the Constitution?” she said.

If the court accepts the plaintiffs’ arguments about the emergency clause voting procedure, the implication would reach perhaps even farther than Andrews. The emergency clauses attached to hundreds of other new state laws passed earlier this year could be struck down, including the state’s fiscal 2024 appropriations. 

Others, including state attorneys, have also wondered if the state would become exposed to illegal exaction lawsuits based on bills enacted with emergency clauses in past legislative sessions. 

A second component to the arguments of those challenging the LEARNS Act’s effective date is whether the Legislature properly stated the need for an emergency clause in the bill. 

Article 5 of the Arkansas Constitution states that an emergency clause is acceptable “if it shall be necessary for the preservation of the public peace, health and safety that a measure shall become effective without delay,” and that “such necessity shall be stated in one section.”

A Pulaski County circuit judge agreed with the plaintiffs on both arguments and entered a temporary restraining order blocking the continued implementation of the LEARNS Act.

The state Supreme Court in a 4-3 decision Friday left that restraining order in place. It is expected to rule within the week on whether the law should’ve been enjoined at all.

Pat Harris, director of advocacy programs at the University of Arkansas at Little Rock William H. Bowen School of Law, noted that, as  in Andrews, the Constitution is always the primary authority.

“[The Supreme Court] should look at the Constitution,” he said. “Now, they’re human, so they may look at what we’ve been doing for decades, but it’s a pretty straightforward point: Did the Legislature follow the Constitution or not?”

This story has been updated to clarify the potential effects of the LEARNS Act lawsuit on other new state laws.