The Arkansas Supreme Court on Thursday said decisions by state boards and commissions are not immune from lawsuits that otherwise are prohibited under the court's ruling last January that the state cannot be made a defendant in its own courts.
In a 4-1 decision marked by sharp concurrences and dissents, the court said agency actions are separate from the overall constitutional concept of sovereign immunity.
The court, in a 5-2 landmark decision last January, cited a provision in the Arkansas Constitution of 1874 that says the state "shall never be made defendant in any of her courts."
Circuit judges have cited that decision in dismissing several lawsuits the past few months.
The ruling in that case, The Board of Trustees of the University of Arkansas v. Matthew Andrews, has marred Arkansas law and placed the members of Arkansas' highest court in a "tired and awkward endeavor," a justice wrote Thursday.
Thursday's ruling dealt with Pulaski County Circuit Judge Tim Fox's dismissal of a lawsuit filed against the Arkansas Oil and Gas Commission in a royalties dispute in Cleburne County.
In dismissing the lawsuit, Fox also said the sovereign immunity decision reached five days earlier by the Supreme Court all but invalidated the Arkansas Administrative Procedure Act, which governs the operations of most state boards and commissions.
Fox made a similar ruling in dismissing a lawsuit filed against the state Plant Board by a group of farmers who sought to continue the use of the dicamba herbicide. The farmers alleged the Plant Board violated their due-process rights by never acting on their formal petition on dicamba's use. That case is still on appeal before the state Supreme Court, as is a lawsuit filed by Monsanto against the Plant Board.
The Oil and Gas Commission appealed part of Fox's ruling; the plaintiffs suing the commission appealed other parts.
"Now, the question before this court is whether [sovereign immunity] prohibits suit against the AOGC in the context of an appeal to circuit court under the APA [Administrative Procedure Act], i.e., whether sovereign immunity prohibits suits seeking judicial review of agency adjudications," Justice Robin Wynne wrote in the majority opinion released Thursday.
Wynne wrote that the case "is distinguishable from Andrews and other recent cases concerning sovereign immunity because it concerns an appeal of an agency adjudication."
The Oil and Gas Commission "is a named defendant, but its role in the proceeding is that of a tribunal or a quasi-judicial decision-maker rather than a real party in interest," Wynne wrote, adding that any decision by the agency wouldn't affect the state treasury or control future actions of the state. The Andrews case involved a money dispute between the University of Arkansas and an employee.
The majority opinion sends the Oil and Gas Commission case back to Fox's court, for him to consider whether the commission violated the Administrative Procedure Act or acted illegally in deciding the Cleburne County royalties dispute.
Justice Josephine Hart joined Wynne on the majority opinion. Justices Rhonda Wood and Shawn Womack agreed in part and dissented in part.
Justice Karen Baker dissented, writing, "because I cannot agree that the circuit court erred ... I dissent from the majority opinion."
Baker, who was one of the two justices who voted against the sovereign-immunity ruling 11 months ago, said Wynne's majority opinion "contradicts" that ruling.
The justices who made up the majority in the Andrews case reached a broad decision that 'never means never,' meaning the state can never be sued, and those justices never identified any exceptions or exemptions, Baker wrote.
"Finally, the majority's opinion is inconsistent with Andrews because actions by the State are at issue in this case," she wrote, dismissing the assertion that the Oil and Gas Commission had no vested interest in the case. If the commission acted illegally, as the plaintiffs in the Cleburne County case claim, conduct of the state itself is at issue and the Andrews ruling barring a lawsuit would apply, Baker wrote.
Hart, who joined Baker on the losing side in last January's Andrews case, agreed with the majority opinion that the Oil and Gas Commission was not a 'made defendant' but said Baker's dissent "raises issues that demand action from this court."
"The untenability of our current sovereign immunity jurisprudence, demonstrated by cases like the one currently before us, is lost neither on the parties to this case nor on the rest of the Arkansas legal community," Hart wrote.
The "fallout" from the Andrew case, she said, "has manifested itself in all forms of state court litigation related to government affairs, with litigants from both the public and private spheres clamoring to either weaponize or escape from Andrews and its undefined limitations, and our law is suffering because of it."
Hart said the court "must wipe the slate on sovereign immunity, in lieu of continuing this tired and awkward endeavor to develop our jurisprudence within Andrews and its progeny."
"We cannot keep doing this," she concluded. "The Andrews decision was improvident for its profound lack of any constitutional analysis."
The opinion released Thursday is CV-18-223.
Business on 12/21/2018