‘Sovereign immunity’ sinks ballot title

Words submitted for proposal should be broken down for voters, AG opines

Most Arkansans are unfamiliar with the phrase “sovereign immunity,” Attorney General Leslie Rutledge said Tuesday as she rejected the ballot wording for a proposed constitutional amendment that would alter the legal doctrine.

As now described in Article 5, Section 20, of the Arkansas Constitution, sovereign immunity means the state “shall never be made defendant in any of her courts.”

The Arkansas Supreme Court recently ruled that that sentence means the Legislature cannot pass laws waiving the state’s immunity. A group of residents wants to add several words to the 1874 document that would allow lawmakers to do so, but the change would require a constitutional amendment approved by voters.

Rutledge, however, opined Tuesday that for the proposal’s ballot title, the group will have to come up with a better description of sovereign immunity, which she called “a legal term of art.”

In order for an amendment to be petitioned for a place on the ballot, the attorney general must determine that it is properly named and that a short description known as a ballot title is not misleading to voters.

Rutledge said she did not have a problem with the proposed popular name — “An Amendment To Authorize The General Assembly To Waive The State’s Sovereign Immunity” — but wrote in an opinion to the amendment’s backers that they needed to explain to voters what sovereign immunity is in the ballot title.

The original wording of the ballot title was almost identical to the popular name: “An amendment to Article V, Section 20 of the Arkansas Constitution authorizing the General Assembly to waive the State’s sovereign immunity.”

“Most voters will not know that the doctrine of sovereign immunity means that a state cannot be sued in its own courts,” Rutledge wrote in her rejection of the proposed ballot title. “Likewise most voters will not appreciate that authorizing the General Assembly to waive sovereign immunity means giving the legislature the ability to enact statutes that allow people and entities to sue the State in state court for money damages and other forms of relief.”

Alex Gray, one of the attorneys backing the measure, said Rutledge’s rejection on the group’s first attempt came as no surprise. Last week, he

told lawmakers that it would likely take a few attempts to get the wording right.

“We will resubmit with revisions in the next couple weeks,” Gray said Tuesday. Asked if he thought most Arkansans were familiar with sovereign immunity, Gray said he didn’t have any issue with Rutledge’s comments.

“I believe that we can describe [sovereign immunity] in a way that the voter will understand,” Gray said.

If Rutledge gives eventual approval to the wording, Gray’s group, the Committee to Restore Arkansans’ Rights, will have to collect more than 84,000 valid signatures of registered voters to have the amendment placed on the statewide ballot in November.

The other option for placing an amendment on the ballot — having the Legislature propose one — has gathered little support among lawmakers. Some expressed concern after the Supreme Court ruled that several laws had an unconstitutional waiver of sovereign immunity.

“There’s been a lot of talk that [an amendment is] ultimately what has to happen, but I don’t know that it will happen this session,” said Senate President Pro Tempore Jonathan Dismang, R-Searcy.

The Legislature will convene for a fiscal session starting Monday, where it will take a two-thirds vote to bring up non-spending bills. The fiscal session is the only planned session for lawmakers this year.