"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 Arkansas Supreme Court ruled in January. This is called the Doctrine of Sovereign Immunity. It comes from England and is inexorably entangled in Divine Right Monarchy.
Sovereign immunity did not enter Arkansas law until the Constitution of 1874, a particularly egregious piece of legal garbage which has hamstrung Arkansas for more than a century. And it was put there for one specific purpose: to deny justice to those whom the state of Arkansas had defrauded. Arkansas' original law from 1838 reads, "All actions by or against the state shall be prosecuted and defended, proceeding in and conducted to final judgment in the same manner as actions by and against individuals." It remained so in Arkansas' next three constitutions (1861, 1864, and 1868).
In 1885, 11 years after the adoption of the 1874 muck up-Constitution, Justice John R. Eakin observed: "When a state steps down into the arena of common business in concert, or in competition with her citizens, she goes divested of her sovereignty."
Eakin would certainly admit that Rich Mountain Community College's failure to pay its bookstore manager is a business matter. The court ruling from earlier this year did not bother to look back that far. They liked Depression-era cases that arose as an excuse when Arkansas for the third time defaulted on its debts.
So why out of the dreary past has this doomsday clock started ticking? One answer is due to popularity of the late Justice Antonin Scalia's doctrine of originalism. "The rule of law is the law of rules," he held. Words mean only what Noah Webster said they meant in 1828.
Scalia thus was happy with the 19th century formalism. Formalism from Arkansas reached the United States Supreme Court in Moore v. Dempsey from 1923, the Elaine Race Riot case. The trial in Helena featured torture to acquire evidence and the mob surrounding the courthouse was ready to lynch not only the accused but even the all-white jurors. Justice Oliver Wendell Holmes Jr. wrote the opinion overturning the convictions, but the two conservatives on the high court found the mobs and torture irrelevant. From our standpoint, at least, the petitioners got a hearing; now no such right exists if any claim of sovereign immunity can be found.
Having a claim and being denied a remedy has been a mockery of justice for more than 2,000 years. Roman jurist Sextus Pomponius said, "It is just by the law of nature that no one should be enriched through another's disadvantage or injury." This led to the conclusion that Extreme Justice results in Extreme Injustice: Summum jus summa injuria.
In England, the Lord Chancellor's duty was to correct the mistakes of the common law. Chief Justice Sir John Holt ruled in 1702, "If the plaintiff has a right, he must of necessity have means of vindication if he is injured in the exercise or employment of it. Right and remedy, want of right and want of remedy, are reciprocal."
But not in Arkansas.
Webster defined a defendant as "any party of whom a demand is made in court." The cases that have so far appeared concern only those trying to sue the state. If sovereign immunity can defend anything as small and insignificant as a remote outpost of the University of Arkansas, it can protect the janitor, the school bus driver, indeed every state employee.
Justice Karen R. Baker in her dissent also listed as doomed by the January decision: 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; and suits filed against the Department of Human Services, including dependency-neglect cases.
Post-conviction cases attack every one of us. Criminal prosecutions are done in the state's name and on appeal the state is listed as defendant! Every appeal from every criminal case must be denied on its face because "The state of Arkansas shall never be made a defendant in any of her courts." The Illinois Supreme Court, when presented with a similar case, simply voided its ancient clauses. That's what our court should have done.
These 15 words void the preamble to the Constitution of 1874 and trash Article 2's Declaration of Rights. There is a remedy in Article 4, Section 2 of the U.S. Constitution: "The United States shall guarantee to every state in this Union a republican form of Government." Abraham Lincoln's first inaugural address stated: "It is as much the duty of government to render prompt justice against itself in favor of its citizens as it is to administer the same between private individuals."
Down with monarchy and bring back government of the people, by the people, and for the people.
Michael B. Dougan of Jonesboro is distinguished professor of history emeritus at Arkansas State University.
Editorial on 08/24/2018
Print Headline: For the people