Ballot bid arises on state’s suit immunity

A campaign is underway to amend the Arkansas Constitution as a way of counteracting what participants in the effort called the state Supreme Court’s “monumental” decision to reassert the state’s immunity from lawsuits.

The Committee to Restore Arkansans’ Rights filed as a group with the Arkansas Ethics Commission on Tuesday, signaling its intent to put before voters in November a constitutional amendment that would allow

● Continued from Page 1A the General Assembly to waive the state’s sovereign immunity.

Later that day, the wording of a proposed popular name for such an amendment, as well as a short description to

be printed on ballots, was submitted to Attorney General Leslie Rutledge. Both actions were announced in a news release Wednesday.

The amendment would add several words to Article V, Section 20 of the constitution — currently reading “The State of Arkansas shall never be made defendant in any of her courts” — that would give permission to the General Assembly to waive such immunity.

In a split decision last week, the Supreme Court ruled that lawmakers have no such authority and that existing laws granting permission to sue the state were unconstitutional.

In response, some attorneys have claimed the ruling leaves them on uncertain legal grounds, even as state leaders have downplayed its potential impact. The legal ramifications have already trickled into the lower courts, where a Little Rock judge cited the decision in voiding the regulatory authority of the state’s Oil and Gas Commission, and the agricultural company Monsanto filed a brief to keep intact its ongoing lawsuit against the state Plant Board.

The committee seeking to change the constitution formed out of an amalgamation of those concerns, said Alex Gray, an attorney with the Little Rock firm Steel, Wright, Gray & Hutchinson, which is backing the effort.

“The amendment is in no way a criticism of the [court’s]

decision,” Gray said. “Based on the plain reading of Article V, Section 20, there’s no exception in there.”

If Rutledge approves the wording and the group collects the more than 84,000 required signatures, the proposed amendment can be put before voters during the November general election.

Gray said it may take several attempts to get the language approved by Rutledge — who has 10 days to review it — but he did not expect much difficulty given the simple wording of the proposed amendment. To collect the signatures, he said, the committee would likely hire canvassers. He said he knew of no organized opposition to the measure as of Wednesday.

Still, the Arkansas Bar Association is unlikely to endorse such an amendment, association President Tony Hillard said, given that its membership includes both private-practice and state attorneys. (The Bar Association is already planning to oppose another ballot question regarding caps on certain damages and attorneys fees).

Rutledge was not made available by her staff for questions on sovereign immunity Wednesday after an unrelated news conference. A spokesman did not reply to an emailed question about whether the attorney general is generally opposed to an amendment that would give the Legislature authority to waive sovereign immunity.

The attorney general did file an amicus curiae, or “friend of the court,” brief arguing in favor of a strict interpretation of sovereign immunity in the case that led to the high court’s new precedent, Board of Trustees of the University of Arkansas v. Matthew Andrews.

In that case Andrews, a former bookstore manager at a state community college, sued for back wages under the state’s Minimum Wage Act. The Supreme Court threw out his case after determining the university system, as a division of the state, was immune from such a suit.

“The Arkansas Constitution leaves no room to interpret the State’s sovereign immunity as anything less than absolute,” Rutledge said in her amicus brief, while also pointing to the possibility of change, which can only be done through a popular vote.

“Unless and until the people of Arkansas establish a new constitution, it is imperative that the current Constitution retain its fundamental sovereignty,” Rutledge wrote.

The other method of getting a constitutional amendment on the ballot would be through the Legislature, which is only scheduled to meet in a fiscal session this year.

Consideration of a nonspending bill would require two-thirds approval by the Legislature, and no lawmakers have publicly said they will put forward such a measure.