Im­mu­nity rul­ing looms as leg­isla­tive panel meets

Arkansas Democrat-Gazette - - FRONT PAGE - JOHN MORITZ

A re­cent Arkansas Supreme Court de­ci­sion reaf­firm­ing the state’s im­mu­nity from law­suits has the po­ten­tial to be the most in­flu­en­tial rul­ing from the high court in more than a decade, the leader of a leg­isla­tive panel said Tues­day.

Rep. Bob Ballinger, R-Hindsville, con­vened the Lit­i­ga­tion Re­ports Over­sight Sub­com­mit­tee on Tues­day to hear tes­ti­mony from sev­eral par­ties about the Jan. 18 Supreme Court rul­ing in Board of Trustees of the Univer­sity of Arkansas v. Matthew An­drews. In that de­ci­sion, a 5-2 ma­jor­ity ruled that the Arkansas Con­sti­tu­tion bars the Leg­is­la­ture from pass­ing laws waiv­ing sov­er­eign im­mu­nity.

Kick­ing off the meet­ing, Ballinger said the An­drews de­ci­sion might be the court’s “big­gest” since its 2002 land­mark school fund­ing de­ci­sion in Lake View School District No. 25 v. Huck­abee.

Ballinger also floated the idea of a con­sti­tu­tional fix to address the An­drews de­ci­sion, though he fell short of en­dors­ing a pro­posed amend­ment al­ready sub­mit­ted by one ci­ti­zens group. The vot­ers would have to ap­prove amend­ing the con­sti­tu­tion, whether the pro­posal is by the Leg­is­la­ture or by ini­tia­tive.

Ac­cord­ing to the Bureau of Leg­isla­tive Re­search, Arkansas is one of three states to have ab­so­lute sov­er­eign im­mu­nity en­shrined in their con­sti­tu­tions.

The oth­ers are West Vir­ginia and Alabama — where courts have carved out ex­cep­tions to sov­er­eign im­mu­nity over the years, ac­cord­ing to the bureau.

In Arkansas, all mon­e­tary claims against the state will now have to go through the Arkansas Claims Com­mis­sion, which is al­ready deal­ing with a 30 per­cent in­crease in claims un­re­lated to the An­drews de­ci­sion, Claims Com­mis­sion Director Kathryn Irby told law­mak­ers. Be­fore An­drews, some mon­e­tary claims were in law­suits filed in state courts and some were filed with the com­mis­sion.

The com­mis­sion, which has five full-time staff mem­bers, in­clud­ing a sin­gle at­tor­ney, is on track to han­dle 1,100 cases in the fis­cal year end­ing in June, Irby said. The com­mis­sion hears cases and de­cides whether claims should be paid and how much. Leg­is­la­tors then re­view the de­ci­sions and de­cide whether to ap­prove or amend the judg­ments made by the com­mis­sion.

With her cur­rent staff, Irby said she will be able to han­dle the work­load, but is hav­ing to ask law­mak­ers dur­ing the fis­cal ses­sion next month to ap­prove $250,000 in ad­di­tional funds to pay the in­creased num­ber of claims.

Irby said she had no pre­dic­tion for how much work the court’s de­ci­sion would send her way, but a “sig­nif­i­cant” in­crease might cause her to re­quest more work­ers.

Be­sides its im­pact on mon­e­tary claims against the state, Ballinger and other law­mak­ers who spoke up dur­ing Tues­day’s two-hour meet­ing said they shared the con­cerns of the court’s dis­sent­ing jus­tices: that the de­ci­sion could be ap­plied to sti­fle suits over pub­lic records re­quests, dis­crim­i­na­tion claims and other il­le­gal ac­tions by state agen­cies.

In a re­but­tal to those fears, Arkansas Solic­i­tor Gen­eral Lee Rud­of­sky of the state at­tor­ney gen­eral’s of­fice told the com­mit­tee that the Supreme Court’s opinion in An­drews had been “nar­rowly” worded and should still al­low ex­cep­tions to sov­er­eign im­mu­nity in the cases of il­le­gal ac­tions by the state.

“I kind of take is­sue with that,” said Sen. Will Bond, D-Lit­tle Rock. “Nar­rowly mean­ing it ap­plies to ev­ery law we’ve ever passed that granted abil­ity to sue the state.”

Rud­of­sky said that un­der

the roughly 20 years of prece­dent pre­ced­ing An­drews, in which the high court al­lowed law­mak­ers to waive im­mu­nity by pass­ing laws, the Leg­is­la­ture only did so on a hand­ful of oc­ca­sions.

The two clear ex­am­ples, Rud­of­sky said, are the state’s whis­tle-blower and min­i­mum wage laws, the lat­ter of which was at the cen­ter of the An­drews de­ci­sion.

Other laws, such as the Free­dom of In­for­ma­tion Act and the Ad­min­is­tra­tive Pro­ce­dure Act, are not mon­e­tary in na­ture, Rud­of­sky said. Un­der his in­ter­pre­ta­tion of An­drews, state agen­cies and of­fi­cials vi­o­lat­ing those laws could still be brought to court.

“I don’t ex­pect many state agen­cies will raise [sov­er­eign im­mu­nity] with re­spect” to those laws, Rud­of­sky said, adding that he would not ad­vise other state at­tor­neys to make such claims.

But court records show that the at­tor­ney gen­eral’s of­fice, which Rud­of­sky rep­re­sents, con­tin­ued to raise sov­er­eign im­mu­nity while seek­ing to dis­miss a Free­dom of In­for­ma­tion Act law­suit seek­ing records re­lated to the state’s ex­e­cu­tion drug sup­ply.

Asked by a re­porter about the claims of sov­er­eign im­mu­nity in that case, a spokesman for the at­tor­ney gen­eral’s of­fice said in a state­ment: “The ar­gu­ment in our … brief was that the de­ci­sion to not dis­close doc­u­ments was con­sis­tent with FOIA and there­fore not a vi­o­la­tion of state law.

“In in­stances where there is a vi­o­la­tion of state law, An­drews does not pre­vent a FOIA law­suit, which is what the Solic­i­tor Gen­eral tes­ti­fied to to­day.”

At­tor­neys for the Univer­sity of Arkansas Sys­tem, who ar­gued the case against a book­store man­ager seek­ing over­time wages in An­drews, also told law­mak­ers they would not use the new prece­dent in at­tempts to dis­miss law­suits over pub­lic records re­quests.

The univer­sity sys­tem also in­tends to fully com­ply with the Arkansas Min­i­mum Wage Act, said at­tor­neys David Curran and JoAnn Maxey, even though the court’s opinion said the sys­tem could not be sued for back wages. The plain­tiff, Michael An­drews, had claimed the sys­tem owed him over­time pay; the state said he should go through the Claims Com­mis­sion.

Se­nate Pres­i­dent Pro Tem­pore Jonathan Dis­mang, R- Searcy, also ex­pressed con­cerns that At­tor­ney Gen­eral Les­lie Rut­ledge — who rep­re­sents the state — had filed an amicus brief sup­port­ing the univer­sity sys­tem while not ask­ing for law­mak­ers’ in­put.

“This case less­ened our abil­i­ties. We lost some con­trol as a Leg­is­la­ture,” Dis­mang said.

Ballinger said any con­sti­tu­tional amend­ment to al­low the Leg­is­la­ture to waive sov­er­eign im­mu­nity would likely have to come from a pub­lic pe­ti­tion process.

That process would re­quire more than 84,000 sig­na­tures to be ob­tained in or­der to get a pro­posed amend­ment on the bal­lot this Novem­ber. So far, word­ing for one pro­posal has been sub­mit­ted to the at­tor­ney gen­eral’s of­fice for ap­proval.

Ballinger

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