JOHN BRUMMETT: The great regression

I asked a lawyer who is a state senator if I could sue the state.

I didn't have anything to sue about. I'm not the litigious sort, preferring to reason together.

I was asking if it was possible for a person, any person, to sue state government right now over anything.

Will Bond of Little Rock said it was a good question.

He didn't know. And he's a good lawyer. And a good state senator.

We're in kind of a mess.

Last Thursday, the Arkansas Supreme Court ruled by 5-to-2 to regress from the 1990s and beyond to the 1930s and before, even by centuries to ancient England with its doctrine of sovereign immunity by which the state cannot be sued in its own courts.

A bookstore employee at Rich Mountain Community College in Mena sued because he'd been put on a salaried status and denied overtime pay though he was forced to work extra hours. He said the circumstance amounted to a violation of the state minimum-wage law.

The Supreme Court, in a majority opinion by the chief, Dan Kemp, said the state Constitution plainly meant what it said when it said the state could not be "made a defendant" in its own court, which is called sovereign immunity.

He wrote that the Supreme Court had been right in the 1930s to affirm that wording as meaning precisely and fully what it said. He said the court had been wrong in the 1990s to say the constitutional provision with the use of the word "made" meant that the state couldn't be compelled to be a defendant in its own courts, but was perfectly within its rights to waive sovereign immunity.

In other words, the law until last week had been: You can't make the state let you sue it. But the state can choose to let you sue it.

Last week's Supreme Court, embracing the '30s over the '90s and the nearly three decades since, said only two things, really.

One was that the Legislature didn't have the authority to waive sovereign immunity on the minimum-wage statute, and the campus bookstore employee thus was quite out of luck. The other was that the court can't deviate an iota from the plain constitutional wording that the state can't be sued in its own courts.

The first thing is too bad for the bookstore employee. The second picks up justice in Arkansas and body slams it.

A sterling dissent by two associate Supreme Court justices whom I haven't normally warmed to, but do on this day, said the '90s ruling was perfectly credible.

Justice Karen Baker wrote, and Justice Jo Hart signed on, that the majority ruling was "astounding" in that it would seem to do away with such historic events as the landmark Lake View case against the state educational funding system, as well as the illegal exaction suits against the state that have put a quietus on legislators' self-use of surplus money in the General Improvement Fund, as well as valiant news media suits against government bodies that balk at consenting to information requests under the Freedom of Information Act.

The state finds itself at one or more of these places:

• Every claim against the state, for money or any other form of redress, must now go to the state Claims Commission, a tiny state agency made up of five people appointed by the governor and who don't have to be lawyers and who work part-time. The commission's awards are subject to ratification and appropriation by the Legislature. The state might need to reconstitute the commission with lawyers and more staff, and, ideally, remove the Legislature's appeals court role.

• Plaintiffs' lawyers could assume for tactical purposes that the ruling had only to do with the minimum-wage law and one bookstore worker, or only with financial disputes, and keep filing administrative and constitutional matters in state courts to test the practical application of the ruling.

• The Legislature could refer to the 2020 general election ballot a proposed constitutional amendment specifically authorizing the state Legislature to waive sovereign immunity and, until then, either lawyers would keep filing in state courts to see how far that would take them or the Claims Commission could be turned into one of the largest and most consequential agencies of state government. A citizens group could initiate such an amendment, and one already has been formed.

There's one other possibility: The Supreme Court could rehear the matter and either clarify its meaning or, better yet, turn the Baker-Hart dissent into the majority opinion.

To say the state can't be "made" to accept a lawsuit against it in its courts should not be interpreted to mean the state can't be permitted by its own choice to allow it. Either way, the state is properly the boss.

Meantime, any reader with a grievance against any part of state government for any reason should ... well ... no one seems quite sure.

And that's not right.


John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, was inducted into the Arkansas Writers' Hall of Fame in 2014. Email him at jbrummett@arkansasonline.com. Read his @johnbrummett Twitter feed.

Editorial on 01/25/2018