Sometimes the news has a funny way of converging.

Yesterday we reported on a lawsuit filed by a group suing Attorney General Leslie Rutledge over her refusal to certify ballot initiatives (she has rejected 69 this election cycle and approved none). That group is hoping to put a measure on the ballot to clarify the law on sovereign immunity in the wake of a recent court decision offering a new interpretation of that provision of the Arkansas Constitution. Meanwhile, the state Supreme Court heard oral arguments yesterday in a case that could further define the court’s interpretation of sovereign immunity (don’t miss Benji’s great coverage). One of the state’s arguments in that case, it seems to me, could be Exhibit A for the group suing Rutledge in the ballot initiative case.

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Sovereign immunity, in a nutshell, means that in certain circumstances the state is protected from being sued. In a 5-2 decision in January, the court reversed longstanding precedent and found that the legislature could not waive sovereign immunity through statute. The constitution states, “The State of Arkansas shall never be made a defendant in any of her courts.” Does the court’s finding mean that the state can never be sued? What if the state acts illegally or violates other parts of the constitution?

In the ongoing Voter ID case, for example, the attorney general’s office seemed to take the extreme view that sovereign immunity was essentially absolute under the court’s new expanded interpretation. If the sovereign immunity precedent superseded the constitution’s rules on voting, it would seem that the state was asserting that the state’s courts should offer no check at all to the state’s government (note that this would apply only to state courts; citizens could still sue the state in federal court). Under that logic, the state could strip citizens of any and all constitutional rights and citizens would have no recourse in state court. That’s a sovereign with a level of immunity not traditionally imagined in American democracy. Circuit Judge Alice Gray slapped down this argument, stating that the plaintiffs are alleging that the state is acting illegally in enforcing the Voter ID law, which remains an exception to sovereign immunity. Gray’s injunction in the case was then overturned without comment by the Supreme Court, which will hear oral arguments in that case in June.

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We could get more clarity on just how far sovereign immunity extends when the court rules in in the minimum wage case that was argued yesterday. The state argued that the Department of Veterans Affairs cannot be sued in state court for denying proper overtime payments to employees. The court’s previous sovereign immunity ruling already found that the state couldn’t be sued in state courts over wage laws — in this new case, the state claimed that sovereign immunity still applied even though it had previously stated in a lower court that it did not (the plaintiffs argue this means the state itself waived sovereign immunity).

At least a few of the justices seemed somewhat shocked by the implications of the state’s arguments yesterday. “What keeps Article 5, Section 20 from … turning Arkansas into a totalitarian state like North Korea?” Chief Justice Dan Kemp asked.

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Assistant Attorney General Jennifer Merritt‘s response is rich with irony given the ongoing lawsuit against her office related to ballot measures: “the Constitution contains a variety of provisions to protect the people from government. … The people reserve the right to amend the constitution, so if the people want to change the sovereign immunity provision, they certainly have the ability to do that.”

They certainly have the ability to do that…unless, as the attorney general’s office argues elsewhere, Attorney General Leslie Rutledge has essentially absolute discretion to reject attempts by the people to start a ballot initiative to change the constitution. In fact, the Committee to Restore Arkansans’ Rights, the group that filed a lawsuit in Pulaski County Circuit Court over this issue, is trying to change the sovereign immunity provision in the constitution.

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In that case, the group is trying to add six words to the sovereign immunity provision in the constitution: “unless authorized by the General Assembly.” The group must first get the attorney general to certify its ballot title in order to begin collecting signatures. Rutledge has repeatedly batted down their proposal, calling it ambiguous. Numerous other groups have also attempted to make proposals only to enter into a game of whack-a-mole with Rutledge — when they address the nits that she picks, she finds new ones, until time runs out to collect signatures by the deadline (one of these groups, pushing a measure to allow casinos, joined the Committee to Restore Arkansans’ Rights lawsuit yesterday).

In her response to the lawsuit, the attorney general asserts that “review of ballot proposals is unquestionably a discretionary process” and that the law “places no boundaries on that discretion.” The Committee to Restore Arkansans’ Rights has argued that the statute that Rutledge is using to block these attempted ballot initiatives is unconstitutional on its face because it impairs the rights of the people to propose constitutional amendments. But even if Judge Wendell Griffen does not find the law itself unconstitutional, the group argues that Rutledge’s application of the law violates the constitution. They argue that Rutledge is abusing her power: “She has acted in bad faith…and her actions are arbitrary and capricious.”

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Remember, when faced with the question of how Arkansas would avoid becoming North Korea if sovereign immunity is essentially limitless, Rutledge’s deputy argued, “The people reserve the right to amend the constitution, so if the people want to change the sovereign immunity provision, they certainly have the ability to do that.”

But Rutledge is also arguing, in the ballot initiative case, that there are “no boundaries” on her discretion to stop people from proceeding with their right to amend the constitution. That’s a troubling argument if this is the right of the people we’re banking on to keep the state from becoming North Korea. Indeed, Rutledge is using this claimed absolute power precisely to block an attempt to change the sovereign immunity provision. That sort of abuse of authority would be grounds for a lawsuit in state court — unless she’s protected by sovereign immunity. These Catch 22s do have a totalitarian whiff, don’t they?

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It’s really an incredible claim of untouchable authority when you hear them together: Rutledge’s office is exploring just how far a provision in the constitution will go in shielding the state from accountability at the same time it’s asserting Rutledge’s unchecked and unaccountable power to block any effort to change that provision.

Rutledge has been subpoenaed to testify in the Committee to Restore Arkansans’ Rights. Her office is fighting that subpoena, but it might be nice to hear what she has to say. 

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