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The Arkansas Supreme Court on Thursday reaffirmed its strict stance on sovereign immunity, once again ruling that lawmakers cannot pass laws giving residents the right to haul state agencies to court.

The narrow 4-3 majority of the court dismissed a lawsuit over back wages filed against the state, while a trio of justices wrote separate dissents criticizing the court's stance. Chief Justice Dan Kemp also issued his own opinion reminding people of their ability to change the state's constitution. The original ruling on sovereign immunity also was on wages.

The case decided Thursday by the court, Arkansas Department of Veterans Affairs v. Mallett & Fabits, was lodged by two former employees at the state Veterans Home at Fayetteville. They alleged that department had failed to compensate them for working through lunch breaks and while off the clock. The state's failure to fully compensate the employees violated the Arkansas Minimum Wage Act, their attorneys argued.

Essentially the same claims were made in an earlier case before the court in January, University of Arkansas System v. Andrews, in which the justices overturned more than 20 years of precedent that had allowed the Legislature to draft exemptions to sovereign immunity, such as those in the minimum wage law.

Writing for the majority, Justice Rhonda Wood said the court had already determined that the minimum wage law violated the Arkansas Constitution's sovereign immunity provisions.

"As we stated in Andrews, the avenue for financial redress is through the Claims Commission," Wood wrote, referring to a quasi-judicial body that hears claims against the state and decides whether to award damages. Justices Shawn Womack and Robin Wynne joined Wood's opinion, and Chief Justice Kemp concurred.

But the court's remaining justices -- Karen Baker, Courtney Goodson and Josephine Hart -- each wrote dissents finding flaws in the majority's continued approach toward sovereign immunity, and they predicted the rulings would lead to more confusion over when it is legal to take the state to court.

Taking aim at a footnote included in Wood's opinion, Baker said the majority was wrong to "caution that Andrews not be interpreted too broadly."

Baker had previously warned that the court's finding in Andrews -- that the Legislature may not create exemptions to sovereign immunity -- could logically be extended to other cases, such as when citizens sue to stop state officials from performing illegal actions, or when state attorneys waive immunity.

Hart went a step further, writing that Andrews ignored other pertinent parts of the state constitution, including due process protections.

"I submit that hiring a person and refusing to pay that person in accordance with the laws of this state is an [illegal] act," Hart wrote in her dissent.

The court has yet to issue a ruling on a case in which sovereign immunity is raised as an argument against the state being forced to follow the law.

An attorney for the two former Veterans Home employees, Timothy Steadman, declined to comment Thursday. Attorney General Leslie Rutledge released a simple statement agreeing with the court's decision.

Lower courts in the state have been grappling with how broadly to apply the new Andrews precedent. In April, the Supreme Court followed up its decision by striking down portions of the Arkansas Whistle-Blower Act that offered state employees an avenue for suit if they felt they had been retaliated against.

In a separate decision Thursday regarding the licensing process of the Arkansas Medical Marijuana Commission, the justices did not address questions about the scope of sovereign immunity that had been raised by the litigants.

The section of the Arkansas Constitution at issue in these rulings is Article 5, Section 20, which states simply: "The State of Arkansas shall never be made defendant in any of her courts."

Even some justices who ended up siding with state attorneys in Thursday's ruling questioned during last month's oral arguments the limits of sovereign immunity. Kemp pondered whether the constitution could turn Arkansas into a "totalitarian state like North Korea" and Wood equated sovereign immunity to a "white flag."

Goodson appeared to refer to that discord when she wrote Thursday that "the court has struggled in finding a majority that understands the application of Andrews."

Goodson's husband, John, is a member of the University of Arkansas System board of trustees, and the justice had recused from the earlier Andrews decision. Her participation in the Veterans Home case narrowed the court's majority to a single vote.

Kemp, the chief justice, concurred with the majority, though he wrote separately to remind Arkansans that they have the ability to change the state constitution if they find fault with it.

Efforts to do so during the current election cycle never got off the ground. Rutledge, who is in charge of certifying accurate descriptions for proposed constitutional amendments, rejected two proposals to change the wording of Article 5, Section 20, that had been put forward by Alex Gray, a Little Rock attorney.

"We just ran out of time," said Gray, who would have had to collect more than 84,000 signatures on petitions to get the amendment on the Nov. 6 general election ballot had Rutledge approved it. The Legislature, when meeting during its biennial regular session, can also refer proposed amendments to the next general election ballot. The next regular session starts in January.

In her statement, Rutledge declined to take a stance on amending the sovereign immunity provisions of the constitution, saying that decision should be left up to the voters.

Metro on 06/22/2018

Print Headline: Can't sue state, high court finds in 2nd wage suit

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