Group seeks to overturn Supreme Court sovereign immunity ruling with amendment | Arkansas Blog

Wednesday, January 24, 2018

Group seeks to overturn Supreme Court sovereign immunity ruling with amendment

Posted By on Wed, Jan 24, 2018 at 10:28 AM

An ad hoc group has announced plans to attempt to put a constitutional amendment on the ballot that would restore the right of the legislature to waive the Constitution's sovereign immunity provision that the Arkansas Supreme Court has said bans lawsuits against the state.

From a release:

The Committee to Restore Arkansans’ Rights has asked Attorney General Leslie Rutledge to certify the popular name and ballot title of a proposed constitutional amendment. The amendment would add clarifying language to Article V, Section 20 of the state constitution to grant authority to the Legislature to allow lawsuits against the state.

Previously, when the General Assembly waived sovereign immunity, it did so by statute. That was a practice the courts had accepted for more than two decades. However, in last week’s 5-2 decision, the Supreme Court ruled the statutory mechanism for waiving sovereign immunity did not supersede Article V, Section 20, which says the state shall not be made a defendant in state courts.

The potential implications of the Court’s decision are far-reaching. Arkansas citizens no longer have an avenue in state court to challenge a broad array of state laws or regulations. In her dissenting opinion, Justice Karen Baker said the decision calls into question actions taken under the Arkansas Freedom of Information Act, the Minimum Wage Act, and the Whistle Blower Act, among others. Additionally, the decision could circumvent lawsuits under the Administrative Procedures Act, stop taxpayer illegal exaction cases and prevent lawsuits against the Department of Human Services regarding child welfare.

The proposed constitutional amendment seeks to ensure the General Assembly may continue the long-held practice of waiving sovereign immunity. The amendment adds six words to Article V, Section 20, so that the constitution would now state: “The State of Arkansas shall never be made defendant in any of her courts, unless authorized by the General Assembly.”

Under Arkansas Code Section 7-9-107, the Attorney General is required to certify or reject the popular name or ballot title of a proposed constitutional amendment within 10 days. Upon certification, the Committee to Restore Arkansans’ Rights would begin collecting signatures for the measure to be placed on the Nov. 6 general election ballot.

Attorney Alex Gray of the Little Rock law firm Steel, Wright, Gray and Hutchinson filed the request Tuesday with the Attorney General on behalf of the Committee to Restore Arkansans’ Rights.
The law firm's partners include former legislator Nate Steel and current state Sen. Jeremy Hutchinson. The same law firm is playing a role in an effort to get a constitutional amendment on the ballot to legalize several casinos in Arkansas, in addition to those now operating at Oaklawn Park and Southland Park. The financial backers of that effort haven't been disclosed yet, though an indication from the Quapaw tribe that it would seek to operate a casino in Jefferson County indicates it could bring its significant resources to the fight. Attorney General Leslie Rutledge has not yet issued a ruling on the form of that proposed amendment. It would devote a big share of gambling taxes to highways.

Amendment backers, once a form is approved, must obtain 84,859 signatures of registered voters to qualify for the November 2018 ballot. They must submit them by early July, four months before the general election.

The new group does not yet have an organizational filing on the state Ethics Commission website.

Should it succeed, this group would hit the ballot along with a competing measure on lawsuits. A business-backed amendment would severely limit damage awards and attorney fees and turn over court rule-making to legislative control.  Does the sovereign immunity proposal contradict or complement that effort? It is, at a minimum, another rebuke to the Supreme Court.

In response to a question, spokesman Aaron Sadler said Ryan Owsley, a Little Rock lawyer, was chairman and treasurer of the committee. Otherwise:

There have been several individuals and businesses concerned about the Court's decision and state sovereign immunity who have encouraged the committee to get the amendment process started. The committee expects a broad coalition of individuals and businesses to support the campaign.
Sadler added this:

This amendment is in no way a criticism of the Andrews decision. It is an attempt to authorize the General Assembly to waive sovereign immunity, which it is currently unable to do. 

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