                                  Cite as 2018 Ark. 12
               SUPREME COURT OF ARKANSAS
                                     No.   CV-17-168

                                                Opinion Delivered: January   18, 2018
 THE BOARD OF TRUSTEES OF THE
 UNIVERSITY OF ARKANSAS
                    APPELLANT
                                                APPEAL FROM THE POLK
 V.                                             COUNTY CIRCUIT COURT
                                                [NO. CV-2013-192]
 MATTHEW ANDREWS
                                APPELLEE HONORABLE JERRY RYAN,
                                         JUDGE

                                                REVERSED AND DISMISSED.


                             JOHN DAN KEMP, Chief Justice


      Appellant, The Board of Trustees of the University of Arkansas (Board), filed this

interlocutory appeal of an order of the Polk County Circuit Court denying a motion to

dismiss an action brought by appellee Matthew Andrews for violations of the overtime

provisions of the Arkansas Minimum Wage Act, codified at Arkansas Code Annotated

sections 11-4-201 to -222 (Repl. 2012 & Supp. 2017). For reversal, the Board argues that

the circuit court erred in denying Andrews’s motion to dismiss because the doctrine of

sovereign immunity applies. Pursuant to Arkansas Supreme Court Rule 1-2(a)(1) (2017),

we have jurisdiction of this appeal because it involves our interpretation of the Arkansas

Constitution. We reverse and dismiss.

                                           I. Facts

      Rich Mountain Community College (RMCC), a publicly-funded, nonprofit college

in Mena, employed Andrews as a bookstore manager from November 15, 2010, through
May 9, 2013.1 His salary was $26,824 per year. When Andrews began working for the

college, he received compensation time for any hours worked beyond his average forty-

hour work week. According to Andrews, his “comp time stopped” in August 2011. RMCC

classified him as exempt from the overtime requirements set forth in the federal Fair Labor

Standards Act (FLSA) and the Arkansas Minimum Wage Act (AMWA). RMCC terminated

Andrews for insubordination in May 2013.

       On November 14, 2013, Andrews filed a complaint against RMCC pursuant to the

AMWA for failing to compensate him for working overtime. On January 29, 2014,

Andrews filed a first amended and substituted complaint, alleging violations of the overtime

provisions of the AMWA and seeking overtime and liquidated damages. In his prayer for

relief, he requested (1) the entry of a declaratory judgment that RMCC’s pay practices

violated the AMWA; (2) the entry of a judgment for damages for all unpaid regular rate and

overtime compensation under the AMWA; (3) an award of liquidated damages pursuant to

the AMWA; (4) the entry of a judgment for punitive damages owed to Andrews pursuant

to the Arkansas Civil Justice Reform Act in an amount to be proven at trial; (5) the entry

of a judgment for any and all civil penalties to which Andrews may be entitled; and (6) an

order directing RMCC to pay Andrews prejudgment interest, attorney’s fees, and costs.

       RMCC answered and pleaded sovereign immunity as an affirmative defense. The

parties filed cross motions for summary judgment, which the circuit court denied.

Subsequently, on August 18, 2016, RMCC filed a motion to dismiss Andrews’s complaint,


       1
         On February 1, 2017, RMCC became a part of the University of Arkansas System.
The circuit court took judicial notice of the merger and ordered that the Board be
substituted as the defendant.

                                             2
arguing that Andrews’s claim under the AMWA was barred by sovereign immunity,

pursuant to article 5, section 20 of the Arkansas Constitution. RMCC asserted that the

General Assembly did not have the authority to abrogate the State’s sovereign immunity in

the AMWA.

       On September 14, 2016, the circuit court conducted a hearing on RMCC’s motion

to dismiss and heard arguments from both parties. The circuit court subsequently issued a

letter order denying RMCC’s motion to dismiss. The circuit court ruled that “RMCC has

[not] met its burden of demonstrating that the provision of the Arkansas Minimum Wage

Act as it applies to Andrews is unconstitutional” and that the State may be sued for violations

of the AMWA. In an order entered October 24, 2016, the circuit court memorialized these

findings, denied RMCC’s motion to dismiss, and found that RMCC was “not entitled to

sovereign immunity as it relates to [Andrews’s] claims under the AMWA.” RMCC filed a

motion for reconsideration; the motion was deemed denied. RMCC appeals.

                                    II. Sovereign Immunity

       For the sole point on appeal, RMCC argues that the circuit court erred in denying

its motion to dismiss. Specifically, RMCC claims that section 11-4-218(e), as it applies to

Andrews, is unconstitutional because it violates article 5, section 20 of the Arkansas

Constitution. RMCC contends that the Arkansas Constitution does not authorize the

General Assembly to waive the State’s sovereign immunity. RMCC argues that this court’s

case law that recognizes a legislative waiver as an exception to sovereign immunity is not

consistent with our constitution.




                                              3
       Andrews responds that the circuit court properly denied RMCC’s motion to dismiss

because the General Assembly’s abrogation of sovereign immunity in the AMWA is

constitutional. Andrews claims that the sovereign-immunity exception applies because the

plain language of section 11-4-218 demonstrates that the intent of the General Assembly

allows for a right of action against the State.

                      A. Interlocutory Appeal and 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.” The

rationale behind this rule is that immunity from suit is effectively lost if the case is permitted

to go to trial when an immunity argument can prevail. Ark. Lottery Comm’n v. Alpha Mktg.,

2012 Ark. 23, 386 S.W.3d 400.

       We generally review a circuit court’s decision on a motion to dismiss by treating the

facts alleged in the complaint as true and by viewing them in the light most favorable to the

plaintiff. Kennedy v. Ark. Parole Bd., 2017 Ark. 234. When the circuit court is presented

with documents outside the pleadings, we treat the case as an appeal from a summary

judgment and view the evidence in the light most favorable to the party opposing the

motion. Bayird v. Floyd, 2009 Ark. 455, 344 S.W.3d 80. However, when the issues on

appeal do not involve factual questions but rather the application of a legal doctrine, we

simply determine whether the moving party is entitled to judgment as a matter of law. Id.,

344 S.W.3d 80.

                             B. Doctrine of Sovereign Immunity


                                                  4
       The Board moved to dismiss Andrews’s action based on sovereign immunity. Article

5, section 20 of the Arkansas Constitution provides that “[t]he State of Arkansas shall never

be made defendant in any of her courts.” Sovereign immunity is jurisdictional immunity

from suit, and jurisdiction must be determined entirely from the pleadings. See

LandsnPulaski, LLC v. Ark. Dep’t of Corr., 372 Ark. 40, 269 S.W.3d 793 (2007); Clowers v.

Lassiter, 363 Ark. 241, 213 S.W.3d 6 (2005); Ark. Tech Univ. v. Link, 341 Ark. 495, 17

S.W.3d 809 (2000). A suit against the State is barred by the sovereign-immunity doctrine if

a judgment for the plaintiff will operate to control the action of the State or subject it to

liability. Ark. State Med. Bd. v. Byers, 2017 Ark. 213, 521 S.W.3d 459.

       This court has held that the Board is an instrumentality of the State and is immune

from suit. See Washington Cty. v. Bd. of Trs., 2016 Ark. 34, 480 S.W.3d 173 (holding that

the university is an instrumentality of the State and that it was immune from ad valorem

taxation); Bd. of Trs. v. Burcham, 2014 Ark. 61 (holding that Burcham’s wrongful-

termination complaint was barred by sovereign immunity and that a sovereign-immunity

exception did not apply).

       This court has held that the doctrine of sovereign immunity is rigid but that it may

be waived in limited circumstances. Office of Child Support Enf’t v. Mitchell, 330 Ark. 338,

954 S.W.2d 907 (1997). This court has recognized that a claim of sovereign immunity may

be surmounted in the following three instances: (1) when the State is the moving party

seeking specific relief; (2) when an act of the legislature has created a specific waiver of

sovereign immunity; and (3) when the state agency is acting illegally or if a state agency




                                             5
officer refuses to do a purely ministerial action required by statute. Ark. Dep’t of Cmty. Corr.

v. City of Pine Bluff, 2013 Ark. 36, 425 S.W.3d 731.

                    C. Arkansas Constitution and Applicable Case Law

       In determining whether the Board is entitled to judgment as a matter of law, we

provide a brief history of the doctrine of sovereign immunity in the Arkansas Constitution.

Originally, in 1868, the Arkansas Constitution read, “The general assembly shall direct by

law in what manner and in what courts suits may be brought by and against the state.” Ark.

Const. of 1868, art. 5, § 45. However, in 1874, the people passed what was the fifth and

current version of the Arkansas Constitution. It altered the previous language and stated that

“[t]he State of Arkansas shall never be made a defendant in any of her courts.” Ark. Const.

art. 5, § 20.

       Subsequently, in 1935, this court considered the issue of whether the legislature

could waive the State’s sovereign immunity. See Ark. Hwy. Comm’n v. Nelson Bros., 191

Ark. 629, 87 S.W.2d 394 (1935). This court stated, “It is our settled conviction that the

state cannot give its consent to the maintenance of an action against it.” Id. at 636, 87

S.W.2d at 397. This court followed that precedent in Fairbanks v. Sheffield, 226 Ark. 703,

292 S.W.2d 82 (1956), by stating that a statute allowing suit against the state park system

was “an unconstitutional attempt on the part of the legislature to consent to a suit against

the State.” Id. at 706, 292 S.W.2d at 84. In Fairbanks, this court held that article 5, section

20 was “mandatory and cannot be waived by the General Assembly.” Id. at 706, 292 S.W.2d

at 84. Again, in 1993, this court held that a statutory requirement for DHS to make

restitution to foster parents who sustained damage to their property by juveniles in DHS’s


                                               6
legal custody was prohibited by the doctrine of sovereign immunity under article 5, section

20. See Dep’t of Human Servs. v. State, 312 Ark. 481, 850 S.W.2d 847 (1993).

       This court adhered to this principle for over sixty years until 1996 in Arkansas

Department of Finance & Administration v. Staton, 325 Ark. 341, 942 S.W.2d 804 (1996), and

in Arkansas Department of Finance & Administration v. Tedder, 326 Ark. 495, 932 S.W.2d 755

(1996). In both cases, Arkansas Code Annotated section 26–18–507(e)(2)(A) (Repl. 1992)

specifically granted legislative permission to a taxpayer to sue the State after a claim for

refund had been filed and refused or the Commissioner had not acted upon it. In Staton,

this court held that because that sole taxpayer had complied with the statute, the State’s

sovereign immunity was waived as to her. Staton, 325 Ark. at 347, 942 S.W.2d at 806. In

Tedder, this court reached a similar conclusion, holding that because the proposed class of

taxpayers had not complied with section 26-18-507, only the named class representative

could maintain a suit against the State. This court stated,

               Our constitution generally prohibits suits against the state. Ark. Const. art. 5,
       § 20. However, Ark. Code Ann. § 26-18-507(e)(2)(A) (Repl. 1992) permits a
       taxpayer to sue the state for an improperly collected sales tax only after a refund has
       been sought and refused or the Commissioner has not acted upon the taxpayer’s
       request. Since Mr. Tedder is the only taxpayer who had requested a refund and had
       his application denied, the Department claims that the chancery court did not have
       subject-matter jurisdiction over the remaining members of the proposed class. In
       State v. Staton, 325 Ark. 341, 934 S.W.2d 478 (1996) (substituted opinion granting
       rehearing), we resolved this issue in the Department’s favor. Recognizing strong fiscal
       public policy concerns, we held that full compliance with the statute is necessary
       before sovereign immunity is waived.

Tedder, 326 Ark. at 496, 932 S.W.2d at 756.

                    C. Applicable Statutes and Statutory Construction




                                               7
       In 2006, the General Assembly enacted a provision allowing employees to file suit

against the State in AMWA actions. Acts of 2006 (1st Ex. Sess.), Act 15, § 5, eff. Oct. 1,

2006; Acts of 2006 (1st Ex. Sess.), Act 16, § 5, eff. Oct. 1, 2006. Subsequently, in 2014,

Andrews filed his amended complaint alleging violations of the AMWA, which provides in

relevant part,

              (e)(1) An employee may bring an action for equitable and monetary relief against an
       employer, including the State of Arkansas or a political subdivision of the state, if the employer
       pays the employee less than the minimum wages, including overtime wages, to which the
       employee is entitled under or by virtue of this subchapter.
              (2) If the employee brings an action under this subsection, then any complaint
       before the director by the employee on the same matter shall be dismissed with
       respect to that employee.
              (3)(A) The employee shall not be required to exhaust administrative remedies
       before bringing an action.
              (B) There shall be no procedural, pleading, or burden of proof requirements
       beyond those that apply generally to civil suits in order to maintain the action.

Ark. Code Ann. § 11-4-218(e) (emphasis added). “Employer” is defined as “the State of

Arkansas” or “any political subdivision of the state[.]” Ark. Code Ann. § 11-4-203(4)(A).

       We review issues of statutory interpretation de novo, as it is for this court to

determine the meaning of a statute. Ark. Dep’t of Corr. v. Shults, 2017 Ark. 300, 529 S.W.3d

628. In the absence of a showing that the circuit court erred, its interpretation will be

accepted as correct on appeal. Id., 529 S.W.3d 628. The primary rule of statutory

interpretation is to give effect to the intent of the legislature. Id., 529 S.W.3d 628. We first

construe the statute just as it reads, giving the words their ordinary and usually accepted

meaning in common language. Id., 529 S.W.3d 628.

       If we apply our post-1996 caselaw, the plain language of section 11-4-218(e) would

qualify as an exception to sovereign immunity because it contains an express waiver created


                                                   8
by the legislature. Subsection (e)(1) allows for “an action for equitable and monetary relief”

against the State of Arkansas “or a political subdivision of the State” for violations of the

AMWA, and this court has held that the Board is an instrumentality of the State. State

Comm’r of Labor v. Univ. of Ark. Bd. of Trs., 241 Ark. 399, 407 S.W.2d 916 (1966). However,

the Board contends that this statutorily created waiver violates the Arkansas Constitution.

       This court begins with the axiom that every act carries a strong presumption of

constitutionality. Ark. Dep’t of Corr. v. Bailey, 368 Ark. 518, 247 S.W.3d 851 (2007). As the

party challenging the legislation, it is the Board’s burden to prove its unconstitutionality,

and all doubts will be resolved in favor of the statute’s constitutionality, if it is possible to do

so. Rose v. Ark. State Plant Bd., 363 Ark. 281, 213 S.W.3d 607 (2005). An act will be struck

down only when there is a clear incompatibility between the act and the constitution. Id.

                                           D. Analysis

       The key question on appeal is whether there is a clear incompatibility between

section 11-4-218 and article 5, section 20 of the Arkansas Constitution. We conclude that

there is a clear incompatibility between section 11-4-218(e) and our state constitution.

       In the case at bar, the circuit court relied in its letter order on Jacoby v. Arkansas

Department of Education, 331 Ark. 508, 962 S.W.2d 773 (1998), in denying RMCC’s motion

to dismiss. In Jacoby, employees of the Arkansas Department of Education filed suit against

the department in state court alleging violations of the FLSA and claiming that the

department failed to pay them. The department moved to dismiss for lack of subject-matter

jurisdiction, arguing that Congress could not abrogate the Eleventh Amendment guarantee

of sovereign immunity. The circuit court granted the motion to dismiss on sovereign-


                                                 9
immunity grounds, but we reversed and remanded, holding that the Eleventh Amendment

did not provide the State with sovereign immunity from FLSA claims in state courts. Id.,

962 S.W.2d 773.

         The Supreme Court of the United States, in Alden v. Maine, 527 U.S. 706 (1999),

abrogated Jacoby. In Alden, a group of probation officers in Maine filed suit against their

employer, the State, alleging that the State violated provisions of the FLSA. The lower

federal and state courts dismissed based on sovereign immunity. The Supreme Court granted

certiorari and recognized that the Maine Supreme Judicial Court’s opinion conflicted with

this court’s Jacoby opinion. The Court held that Congress cannot subject a State to an action

in state court without its consent. Id. at 758.

         We reverse the circuit court’s ruling for the following reasons. First, this appeal

involves a question of state constitutional law. In Jacoby, this court applied federal

constitutional law to a federal statute. Jacoby does not apply to the case at bar. The present

case concerns our interpretation of the validity of section 11-4-218(e) vis-à-vis article 5,

section 20 of the Arkansas Constitution. Thus, the circuit court’s reliance on Jacoby was in

error.

         Second, we acknowledge that the General Assembly enacted the AMWA and

allowed “an action for equitable and monetary relief against [the State].” Ark. Code Ann. §

11-4-218(e). Nevertheless, we conclude that the legislative waiver of sovereign immunity

in section 11-4-218(e) is repugnant to article 5, section 20 of the Arkansas Constitution. 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 drafters of


                                              10
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. The

people of the state of Arkansas approved this change when ratifying the current constitution.

The General Assembly does not have the power to override a constitutional provision. To

the extent section 11-4-218(e) directly contradicts the constitution, it must fail.

       Third, under the doctrine of stare decisis, we cannot ignore six decades of this court’s

precedent prior to Staton. In Nelson Brothers, we stated,

       The human element in legislatures and courts, following a natural impulse, abhors an
       injustice perpetrated without a forum in which the right denied or the wrong suffered
       may be asserted or redressed. Therefore, we find legislatures devising means for the
       assertion of rights or the redress of wrongs even when the state is involved and the
       courts are as sensitive to such impulse as the legislatures. On that account laws are
       often enacted and decisions rendered to effectuate abstract justice, but which on no
       just grounds can be sustained except by unsound or specious reason. An apt
       illustration of this is found in the cases which we have reviewed. It is with reluctance
       that we have undertaken this review, but we are impelled by the conviction that
       these decisions are wrong. We realize that the overruling of a decision has a tendency
       to render the laws of the state less certain. In this case, however, to adhere to our
       former decisions would be, as we conceive it, nothing short of judicial usurpation. It
       is our settled conviction that the state cannot give its consent to the maintenance of
       an action against it and the court below was without jurisdiction. No one has a vested
       right to sue the state even when that privilege may be, and has been, given; it may
       be withdrawn even where a suit has been commenced without disturbing any vested
       right. Beers, Use of Platenius v. State of Arkansas, 20 How. 527, 15 L. Ed. 991. “The
       plaintiff cannot complain because the court overrules its former decision, even
       though that decision permitted the plaintiff to maintain its suit similar to the one
       now before us.” Pitcock v. State, [91 Ark. 527, 121 S.W. 742 (1909)].

Nelson Bros., 191 Ark. at 636–37, 87 S.W.2d at 397. We conclude that Nelson Brothers,

Fairbanks, and Arkansas Department of Human Services are the correct precedent for this court

to follow in its conclusion that the General Assembly cannot waive the State’s immunity




                                              11
pursuant to article 5, section 20. To the extent that other cases conflict with this holding,

we overrule those opinions.

       Further, this court has held that suits subjecting the State to financial liability are

barred by sovereign immunity and that plaintiffs like Andrews with these causes of actions

have a “proper avenue for redress against State action, which is to file a claim with the

Arkansas Claims Commission.” Univ. of Ark. for Med. Scis. v. Adams, 354 Ark. 21, 25, 117

S.W.3d 588, 591 (2003); see also Ark. Const. Art. 2, § 13 (stating 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”).

                                   III. Additional Arguments

       Andrews raises additional arguments that (1) article 2 trumps article 5, and thus the

State must be answerable in court to claims at law for violations of the AMWA, and (2) any

application of sovereign immunity has been waived.

       We do not address these arguments. Here, the circuit court did not specifically rule

on these issues in either its letter order or its final order. This court has been clear that it

will not presume a ruling from the circuit court’s silence, and we have held that we will not

review a matter on which the circuit court has not ruled. Alpha Mktg., 2012 Ark. 23, 386

S.W.3d 400.

                                        IV. Conclusion

       For the foregoing reasons, we hold that the circuit court erred as a matter of law in

denying the Board’s motion to dismiss because it lacked jurisdiction over Andrews’s AMWA

claim pursuant to the doctrine of sovereign immunity. Accordingly, we reverse and dismiss.


                                              12
See, e.g., Burcham, 2014 Ark. 61 (reversing and dismissing because a sovereign-immunity

waiver did not apply).

       Reversed and dismissed.

       Special Justice CHAD PEKRON joins in this opinion.

       BAKER and HART, JJ., dissent.

       GOODSON, J., not participating.

       KAREN R. BAKER, Justice, dissenting. I must dissent from the majority’s decision

to hold that the legislative waiver of sovereign immunity found in the Arkansas Minimum

Wage Act is unconstitutional. The majority’s opinion is patently flawed for several reasons.

       First, the majority’s holding yields the untenable position that while private

employers are required to pay their employees minimum wage, the State may forgo paying

its employees the required minimum wage. By way of example, when an act is passed by

the legislature or more specifically, when the citizens of Arkansas pass an act to increase the

minimum wage, pursuant to the act, private employers are required to compensate their

employees in compliance with the act. However, as a result of the majority’s holding, the

Minimum Wage Act is no longer applicable to the State. Thus, if the State pays its

employees below the required minimum wage threshold, State employees will have no

available recourse because there is no longer a right to enforce the Act against the State.

       Second, the majority opinion appears to attempt to limit its holding to only legislative

waivers of sovereign immunity; however, its holding is much more far-reaching. Article 5,

section 20 states that “[t]he State of Arkansas shall never be made defendant in any of her

courts.” Ark. Const. art. 5, § 20. (emphasis added). The word “made” is the past participle


                                              13
of the word “make.” Merriam-Webster’s Collegiate Dictionary (9th ed.) (1991). Webster’s lists

twenty-five definitions for the word “make.” One of these definitions is to “to cause to be

or cause to become.” Another definition is “to cause to act in a certain way: compel.” I

submit that the drafters of the constitution intended for “made” to mean the latter, to

“compel.” Any other interpretation of “made” would render any waiver of sovereign

immunity—by the executive, legislative or judicial branch—impossible. Thus, we could

not hold that the State waives sovereign immunity: by the executive branch, through the

attorney general seeking relief or by bringing suit; by a legislative act; or by the judicial

branch through postconviction rules. However, if the word “made” means to compel, then

the State can allow itself to be sued in those situations. Further, the majority’s attempt to

limit its holding to money judgments is disingenuous to the literal text of article 5, section

20. If the majority is holding that “made” means to “cause to become,” then the text of

article 5, section 20 should be read to mean that the State cannot be caused to be a defendant

in any of her courts. Absent from our constitution is any language limiting sovereign

immunity to money judgments. The majority’s holding that the legislature may no longer

waive sovereign immunity, necessarily means that the executive and judicial branches

likewise may not waive sovereign immunity because any other interpretation would result

in treating the legislature differently from the executive and judicial branches. For each

branch to operate as envisioned by the constitution, one branch must not be subordinated

to either or both of the other branches, and one branch must not take control of one or

both of the other branches. City of Lowell v. M & N Mobile Home Park, Inc., 323 Ark. 332,

916 S.W.2d 95 (1996).


                                             14
       Third, the majority declines to address Andrews’s arguments regarding article 2

because the circuit court failed to specifically rule on this issue. However, the Arkansas

Constitution must be considered as whole, and every provision must be read in light of

other provisions relating to the same subject matter. Gatzke v. Weiss, 375 Ark. 207, 289

S.W.3d 455 (2008) (citing Foster v. Jefferson Cty. Quorum Ct., 321 Ark. 105, 901 S.W.2d

809 (1995)). Because of the majority’s holding, specific sections of article 2 now conflict

with article 5. Section 1 governs the authority of the government and states 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.” Ark. Const. art. 2, § 1. Section 7 governs the right to

a trial by jury and states that “[t]he right of trial by jury shall remain inviolate, and shall

extend to all cases at law, without regard to the amount in controversy; but a jury trial may

be waived by the parties in all cases in the manner prescribed by law[.]” Id. § 7. See Tilley

v. Malvern Nat’l Bank, 2017 Ark. 343. Section 13 states 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.” Id. § 13. Section

29 states that “[t]his 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


                                              15
contained, shall be void.” Id. § 29. However, because of the manner in which the majority

has interpreted article 5, the holding clearly violates the above-cited article 2 provisions.

        Fourth, after citing the 1874 constitution, the majority states, “Subsequently, in

1935, this court considered the issue of whether the legislature could waive the State’s

sovereign immunity. See Ark. Hwy. Comm’n v. Nelson Bros. 191 Ark. 629, 87 S.W.2d 394

(1935). This court stated, ‘It is our settled conviction that the state cannot give its consent

to the maintenance of an action against it.’” The majority implies that this was the first

post-1874 case in which it considered the issue of sovereign immunity. However, when

presented with this issue in 1932, this court allowed the suits to proceed since two justices

believed the suits were not against the State and two believed the State could consent to be

sued.   See L. Scott Stafford, Separation of Powers and Arkansas Administrative Agencies:

Distinguishing Judicial and Legislative Power, U. Ark. Little Rock L. Rev. 279 (1984). In

Arkansas Highway Commission v. Dodge, the court explained:

        It will be seen that out of the conflicting views of a majority of the several members
        of the court a very definite result has been reached; i.e., that in a proper case the
        highway commission may be sued when authority for the bringing of the suit may
        be found in the statute . . . we now hold that, in all cases where the statute authorizes
        a suit, it may be maintained against the highway commission whether it be thought
        to be a juristic person or whether section 20, art. 5, be merely declaratory of the
        general doctrine that the state may not be sued in her courts unless she has consented
        thereto.

186 Ark. 640, 133–34, 55 S.W.2d 71, 73 (1932), overruled in part by Ark. Hwy. Comm’n v.

Nelson Bros., 191 Ark. 629, 87 S.W.2d 394 (1935). Thus, subsequent to the adoption of

our current constitution, the doctrine of sovereign immunity has been interpreted at least

three different ways.




                                               16
       Fifth, the majority states that “under the doctrine of stare decisis, we cannot ignore

six decades of this court’s precedent prior to Staton.” However, the same can be said with

regard to our over twenty years of precedent set forth in Staton and Tedder. In Chamberlin

v. State Farm Mutual Auto Insurance Company, 343 Ark. 392, 36 S.W.3d 281 (2001), this

court described the dictates of stare decisis as follows:

       Under the doctrine of stare decisis, we are bound to follow prior case law. The policy
       of stare decisis is designed to lend predictability and stability to the law. It is well-
       settled that “[p]recedent governs until it gives a result so patently wrong, so manifestly
       unjust, that a break becomes unavoidable.” Our test is whether adherence to the rule
       would result in “great injury or injustice.”

(Internal citations omitted.) Pursuant to Chamberlain, the majority has failed to demonstrate

that our precedent set forth in Staton is “patently wrong” or “manifestly unjust.” Instead,

the majority’s decision, 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.”2 By focusing solely on Staton and Tedder, the majority’s


       2
         Since Staton and Tedder, we have consistently recognized an exception to the
doctrine of sovereign immunity where an act of the legislature has created a specific waiver
of immunity. See Ark. State Med. Bd. v. Byers, 2017 Ark. 213, 521 S.W.3d 459; Lenard v.
Kelley, 2017 Ark. 186, 519 S.W.3d 682; Ark. State Police Ret. Sys. v. Sligh, 2017 Ark. 109,
516 S.W.3d 241; Kelley v. Johnson, 2016 Ark. 268, 496 S.W.3d 346; Johnson v. Butler, 2016
Ark. 253, 494 S.W.3d 412; Duit Constr. Co., Inc. v. Ark. State Claims Comm’n, 2015 Ark.
462, 476 S.W.3d 791; Ark. Dep’t of Human Servs. v. Fort Smith Sch. Dist., 2015 Ark. 81, 455
S.W.3d 294; Smith v. Daniel, 2014 Ark. 519, 452 S.W.3d 575; Ark. State Claims Comm’n v.
Duit Constr. Co., Inc., 2014 Ark. 432, 445 S.W.3d 496; Crossno v. Felts, 2014 Ark. 262 (per
curiam); DuBois v. Hobbs, 2014 Ark. 259 (per curiam); Mitchem v. Hobbs, 2014 Ark. 233 (per
curiam); Bd. of Trs. v. Burcham, 2014 Ark. 61; Kiesling-Daugherty v. State, 2013 Ark. 281;
Ark. Lottery Comm’n v. Alpha Mktg., 2013 Ark. 232, 428 S.W.3d 415; Ark. Dep’t of Cmty.
Corr. v. City of Pine Bluff, 2013 Ark. 36, 425 S.W.3d 731; Ark Game & Fish Comm’n v.
Eddings, 2011 Ark. 47, 378 S.W.3d 694; Ark Dep’t of Envtl. Quality v. Al-Madhoun, 374 Ark.
28, 285 S.W.3d 654 (2008); Jones v. Flowers, 373 Ark. 213, 283 S.W.3d 551 (2008); Weiss
v. McLemore, 371 Ark. 538, 268 S.W.3d 897 (2007); Simons v. Marshall, 369 Ark. 447, 451,
255 S.W.3d 838, 841 (2007); Ark Dep’t of Human Servs. v. T.B., 347 Ark. 593, 67 S.W.3d

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opinion ignores the breadth of its decision and leaves the state of law on sovereign immunity

in complete disarray. The implications of its holding are astounding and call into question

other established precedent. See Lake View Sch. Dist. No. 25 of Phillips Cty. v. Huckabee, 340

Ark. 481, 10 S.W.3d 892 (2000) (holding that the State, through the executive branch,

waived sovereign immunity when it signed off on two published notices to the class

members advocating attorneys’ fees); Ark. Dep’t of Human Servs. v. R.P., 333 Ark. 516, 970

S.W.2d 225 (1998) (holding that the General Assembly waived the Department’s sovereign

immunity as to providing family services in child-welfare proceedings). The following list

includes, but is not limited to, the specific types of actions that the majority’s decision calls

into question when the suit is filed against the State of Arkansas:

       • Arkansas Minimum Wage Act
       • Arkansas Whistle Blower’s Act
       • Post-conviction cases
       • Land-condemnation cases
       • Illegal-exaction cases
       • Suits against State owned hospitals
       • Freedom of Information Act
       • Suits filed against DHS, including dependency-neglect cases
       As discussed above, the majority’s opinion transforms the State to king-like status and

makes “the king can do no wrong” theory absolute. However, even under that theory, the



539 (2002); Short v. Westark Cmty. Coll., 347 Ark. 497, 65 S.W.3d 440 (2002); State v. Goss,
344 Ark. 523, 42 S.W.3d 440 (2001); Ark. Pub. Def. Comm’n v. Greene Cty. Cir. Ct., 343
Ark. 49, 32 S.W.3d 470 (2000); Milberg, Weiss, Bershad, Hynes & Lerach, LLP v. State, 342
Ark. 303, 28 S.W.3d 842 (2000); Ark. Pub. Def. Comm’n v. Burnett, 340 Ark. 233, 12
S.W.3d 191 (2000); Ark. Dep’t of Human Servs. v. R.P., 333 Ark. 516, 970 S.W.2d 225
(1998); Office of Child Support Enft. v. Mitchell, 330 Ark. 338, 954 S.W.2d 907 (1997); Cross
v. Ark. Livestock & Poultry Comm’n, 328 Ark. 255, 943 S.W.2d 230 (1997).


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law has always recognized the sovereign’s right to submit to suit. This court, for over twenty

years, has recognized that the sovereign may waive its immunity and submit to suit. I would

follow our precedent and I would hold that the General Assembly’s abrogation of sovereign

immunity found in Arkansas Code Annotated section 11-4-218 is constitutional.

       HART, J., joins.

       David A. Curran, Associate General Counsel, University of Arkansas System, for
appellant.

       Sanford Law Firm, PLLC, by: Josh Sanford, for appellee.

       Leslie Rutledge, Attorney General, by: Lee Rudofsky, Arkansas Solicitor General;
Nicholas J. Bronni, Arkansas Deputy Solicitor General; and Delena C. Hurst, Assistant
Attorney General, counsel for amicus curiae in support of appellant.




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