JOHN THURSTON, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE OF THE STATE OF ARKANSAS; SHARON BROOKS; BILENDA HARRIS-RITTER; WILLIAM LUTHER; CHARLES ROBERTS; JAMES SHARP; AND J. HARMON SMITH, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE ARKANSAS STATE BOARD OF ELECTION COMMISSIONERS v. THE LEAGUE OF WOMEN VOTERS OF ARKANSAS; ARKANSAS UNITED; DORTHA DUNLAP; LEON KAPLAN; NELL MATTHEWS MOCK; JEFFERY RUST; AND PATSY WATKINS
No. CV-21-581
SUPREME COURT OF ARKANSAS
February 17, 2022
2022 Ark. 32
HONORABLE WENDELL L. GRIFFEN, JUDGE
APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CV-21-3138]
APPELLANTS AFFIRMED.
Aрpellees, the League of Women Voters of Arkansas and Arkansas United, Dortha Dunlap, Leon Kaplan, Nell Matthews Mock, Jeffery Rust, and Patsy Watkins (“the League“) filed suit against appellants John Thurston, in his official capacity as the Secretary of State of the State of Arkansas; and Sharon Brooks, Bilenda Harris-Ritter, William Luther, Charles Roberts, James Sharp, and J. Harmon Smith, in their official capacities as members of the Arkansas State Board of Election Commissioners (“Thurston“) alleging that four acts passed by the 93rd Session of the Arkansas General Assembly were unconstitutional--Act 736, Act 973, Act 249, and Act 728. The League refers to the acts as the “Absentee Application Signature Match Requirement,” the “In-Person Ballot Receipt Deadline,” the “Voter ID Affidavit Prohibition,” and the “Voter Support Ban,” respectively. Thurston moved to dismiss based on sovereign immunity. The circuit court denied the motion. Pursuant to
On May 19 and July 1, 2021, the League filed its complaint and its amended complaint fоr injunctive and declaratory relief alleging that the four acts violate various provisions of the Arkansas Constitution. Specifically, the League alleged that Act 736 makes it substantially harder for voters to obtain an absentee ballot by making the signature-matching process more unreliable and error-prone, thereby disenfranchising voters properly entitled to absentee ballots. With regard to Act 973, the League alleged that the Act unjustifiably shortened the deadline for voters to return absentee ballots in person, thereby disenfranchising voters without reasonable justification. The League further alleged that Act 249 enacted a strict voter-identification requirement and eliminated the “Affidavit-Fail Safe” written affirmation for voters who lacked an accepted form of voter identification, thereby disenfranchising voters who do not have acceptable voter identification. Last, the League alleged that Act 728 restricts the expressive activities of nonprofit nonpartisan groups and criminalizes entering an area within 100 feet of a polling place unless the person is entering or leaving the building where voting is taking place for lawful purposes. The League alleged that Act 728 is unnecessarily vague and impedes nonpartisan voter-support activities by excluding nonvoting caretakers, friends, and fаmily from providing support to voters waiting in line. The League alleged that these four Acts violate the following provisions of the Arkansas Constitution:
. . . .
[The Leаgue] allege[s] that the Challenged Provisions burden their fundamental rights to vote, speak, and assemble, and that strict scrutiny applies. . . . The Amended Complaint alleges how [the League is] . . . burdened or impaired in their exercise of their fundamental rights under the Challenged Provisions, that in certain circumstances their fundamental rights and those of others who are similarly situated will be outright denied, and the threat of harm is imminent. The Amendment Complaint also alleges that [Thurston] lack[s] any compelling state interest in the Challenged Provisions, and that they are not the least restrictive method available to carry out any such interests. Because these are questions of fact, the issue of whiсh legal standard applies is not ripe for determination and will be addressed when the case is considered with the merits. However, the court holds that the amended complaint contains sufficient factual allegations to withstand dismissal at this stage as to those assertions.
From that order, Thurston filed the instant timely interlocutory appeal. On December 15, 2021, we granted Thurston‘s motion to expedite his appeal. For reversal, Thurston presents three points: (1) Thurston is entitled to sovereign immunity; (2) the applicable standard to assess the Acts is rational basis; and (3) the Acts are constitutional.
This appeal stems from the circuit court‘s denial of Thurston‘s motion to dismiss. “When reviewing а circuit court‘s order granting [or denying] a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Wade v. Ferguson, 2009 Ark. 618, at 2, 2009 WL 4723356. ‘In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and all pleadings are to be liberally construed. Id. When a complaint is dismissed on a question of law, this court conducts a de novo review. State v. West, 2014 Ark. 174, 2014 WL 1515898; Fatpipe, Inc. v. State, 2012 Ark. 248, 410 S.W.3d 574.’ Steele [v. Thurston], 2020 Ark. 320, at 4, 609 S.W.3d 357, 361. The standard of review for the granting [or denying] of a motion to dismiss is whether the circuit court abused its discretion. Henson v. Cradduck, 2020 Ark. 24, 593 S.W.3d 10.” Kimbrell v. Thurston, 2020 Ark. 392, at 5-6, 611 S.W.3d 186, 190. Further, “we look only to the allegations in the complaint and not to matters outside the cоmplaint. However, we treat only the facts alleged in the complaint as true but
With these standards in mind, we turn to the issue before us. We note that although Thurston has presented three points in this interlocutory appeal, the only issue we have jurisdiction to review is whether Thurston is entitled to sovereign immunity. See
On appeal, Thurston contends that he is entitled to sovereign immunity and that the League has not pled sufficient facts to allege the unconstitutionality of the Acts at issue. Thurston further asserts that the League has failed to plead sufficient facts upon which relief could be granted against the challenged Acts and that Thurston is entitled to sovereign immunity. Relying on Martin v. Haas, 2018 Ark. 283, 556 S.W.3d 509, the League responds that the only analysis necessary to determine whether Thurston is entitled to the defense of sovereign immunity is to determine whether the League sufficiently alleged a violation of constitutional rights and only seeks equitable reliеf; if the League did sufficiently plead such, then Thurston is not entitled to sovereign immunity.
In Haas, 2018 Ark. 283, 556 S.W.3d 509, Haas, a voter, filed a declaratory action seeking a declaration that an act related to voter registration be declared unconstitutional and enjoin enforcement of the act. On appeal, Martin, as Secretary of State, contended that he was entitled to sovereign immunity. We held that sovereign immunity was not applicable. We explained that although Martin raised sovereign immunity, “[b]ecause [Haas] has asserted that Act 633 violates qualified voters’ constitutional right to vote and seeks declaratory and injunctive relief, not money damages, this action is nоt subject to the asserted sovereign-immunity defense.” Id. at 8, 556 S.W.3d at 515. Although we granted Haas no declaratory or injunctive relief on his claims, we concluded that sovereign immunity did not provide a basis for dismissal.
Here, as in Haas, the League has alleged that specific acts violate the Free and Fair Election Clause; the Equal Protection Clause; the Voter Qualification Clause, and the Free Speech and Assembly Clauses of the Arkansas Constitution; and that Act 249 additionally violates
Affirmed.
WOOD, J., concurs.
WOMACK, J., dissents.
RHONDA K. WOOD, Justice, concurring. I write separately to address the importance of interpreting the constitution according
damage claims agаinst the State but (ii) allows declaratory and injunctive relief against state officials who act illegally or unconstitutionally.
We should first look to the constitutional text. If uncertainty and ambiguity exist, we can then consider the text according to its original meaning. The question raised here involves how to define “the State” as described in
view.5 Likewise, this court has unanimously allowed inmates to pursue civil complaints against the State in the context of their incarceration.6
Nor does the provision bar claims against State officials who act illegally, unconstitutionally, or ultra vires.7 These actions are not truly against the State, but against rogue State officials whom the courts can enjoin. This is similar to the U.S. Supreme Court‘s doctrine that a lawsuit to enjoin a State official from taking unlawful action does not implicate State sovereign immunity under the
The historical record provides other helpful guidance in determining the provision‘s original meaning. As we said in Andrews, before the 1874 Constitution, the General Assembly had the power to pass laws authorizing citizens to sue the State of Arkansas for
monetary damages.10 But a dramatic shift happened between the Constitution of 1868 and the current Constitution of 1874: the State‘s citizens wanted to protect themselves from government overreach and to рrotect an overspending government from itself.11 These concerns about excessive government power show that the original meaning of
The 1874 Convention reflected the State‘s perilous financial condition. The State carried debt totaling approximately 20 million dollars.12 Taxes were at an all-time high.13 “Foremost in the minds of the delegates was the dangerous financial condition of the State.”14 One of the first acts at the convention was to call for a report on the State‘s finances, and the delegates spent weeks focusing on financial issues.15 The changes between the 1868 Constitutiоn and the 1874 Constitution reveal decision after decision to limit the
government‘s ability to further financially strain the State. Some examples include the prohibition on incurring debts and the “severe restraints on the taxing powers of both state and local governments by imposing low maximum rates.”16
The 1874 Convention also took place when many were concerned with excessive government power. “Opposition to centralization . . . became an overarching theme.”18 The dеlegates at the 1874 Constitutional Convention “enable[d] people to exercise more direct control over their elected officials.”19 Most scholars emphasize the shift from 1868 to 1874 as being
designed to protect the people from overreach and “precluded . . . strong executive leadership and activist government.”22
The Andrews decision fits perfectly within this textual and historical context. There, the legislature had enacted the Arkansas Minimum Wage Act, allowing individuals to recover monetary damages against thе State. This court correctly found the Act to be an impermissible legislative waiver.23 We said never means never and returned to prior case law that did not allow such a waiver. We reached the same conclusion about the Arkansas Whistle-Blower Act when the plaintiff there sued a State agency for money damages.24 Put simply,
The same week that this court decided Andrews, we also decided Williams v. McCoy, a case where the plaintiff alleged state officials acted illegally.25 We did not extend the Andrews holding but rather considered the case on the merits and whether the plaintiffs pled sufficient facts. That the court decided two cases implicating the Stаte as a defendant, with different results based on the relief sought, speaks volumes. Since Andrews, this court has
continually interpreted
And no historical document suggests the provision‘s original meaning stripped power from the people to hold their government officials accountable. Any such document would be anomalous: the 1874 delegates wanted more citizen control over government--not less. To now interpret the provision as handcuffing the people from seeking relief in state court for other constitutional rights enshrined in the 1874 Constitution would upend that document‘s primary goal. And it is the people оf Arkansas--not government bureaucrats--who are truly sovereign under our constitution.27 Why would the people of Arkansas pass a constitution that gave them individual liberty, freedom of speech, freedom of assembly, and the right to bear arms, and at the same time destroy their ability to vindicate such rights in state court?
Consider the following factual scenario: during a state of emergency, members of the executive branch issue interim orders aimed at curbing the emergency. But the orders plainly contradict the Arkansas Constitution and statutory law. Sovereign-immunity absolutism would bar citizens from filing lawsuits to enjoin the officials from enforcing these illegal
orders. Some might say the legislature can step
The dissent responds with three points. None have merit. First, it argues that “never means never,” that the majority has created unwritten exceptions, and that the constitutional language is clear. But if so clear, why has the Arkansas Supreme Court debated its meaning for over a hundred and fifty years? If so clear, why did the dissent admittedly write or join opinions specifically stating the contrary?29 Second, the dissent contends sovereign-immunity
implicates subject-matter jurisdiction and must be addressed before any other issue. If that‘s true, why did the dissent just last week affirm the dismissal of a lawsuit against a state district court judge without ever confronting the “jurisdictional” issue of sovereign immunity?30 Last, the dissent attacks the concurrence and the majority not with law, but with rhetoric and by citing cases that tend to incite political discourse on a national level. But abortion and gay marriage have nothing to do with state sovereign immunity. Objective observers will see this ploy for what it is.
Neither the constitution‘s text, history, nor its function prohibits citizen-led suits
My originalist interpretation adheres to the original intent to provide citizens with more protection and to restrict governmental abuse. For the above reasons, I will continue to apply the plain language and original meaning of the Arkansas Constitution and allow our citizens to seek declaratory and injunctive relief when state officials act illegally.
SHAWN A. WOMACK, Justice, dissenting. What does it mean when the constitution commands that something never happen? This court has read never as exceрt for three circumstances. See, e.g., Bd. of Trs. of Univ. of Ark. v. Andrews, 2018 Ark. 12, at 5, 535 S.W.3d 616, 619-20. There are few clearer commands in our constitution than
A faithful interpretation of our constitution requires this court to recognize that the State can never properly be before any of its courts as a defendant. Ark. Dеv. Fin. Auth. v. Wiley, 2020 Ark. 395, at 9, 611 S.W.3d 493, 500 (Baker, J., concurring). To the extent any of our precedents hold otherwise, they clearly conflict with the unambiguous requirements of our constitution. See
Because the State--absent an express constitutional provision to the contrary--shall never be a defendant in any of its courts, Arkansas courts lack jurisdiction to hear any case where the State is a defendant. See Wiley, 2020 Ark. 395, at 9, 611 S.W.3d at 500 (Baker, J., concurring) (noting that “sovereign immunity is jurisdictional immunity from suit“); see also Andrews, 2018 Ark. 12, at 5, 535 S.W.3d at 619 (“Sovereign immunity is jurisdictional immunity from suit . . . .“). Doctrines of immunity exist to prevent litigation, not liability. Davis Nursing Ass‘n v. Neal, 2019 Ark. 91, at 8, 570 S.W.3d 457, 462 (Wood, J., concurring) (discussing charitable immunity, although this general principle of immunity equally applies to sovereign immunity). Once litigation proceeds against an immune defendant, the defendant has essentially lost this protection, regardless of the outcome. Id. This is no different when the State is the defendant, and the concurrence does not explain why it should be. See
The concurrence admirably attempts to defend our precedent as harmonious with the original meaning of
[E]quity will exercise jurisdiction to restrain acts or threatened acts of public corporations or of public officers, boards, or commissions which are ultra vires and beyond the scope of their authority, outside their jurisdiction, unlawful or without authority, or which constitute a violation of their official duty, whenever the execution of such acts would cause irreparable injury to, or destroy rights and privileges of, the complainant, which are cognizable in equity, and for the protection of which he would have no adequate remedy at law.
Id. (quoting Jensen v. Radio Broad. Co., 208 Ark. 517, 520, 186 S.W.2d 931, 932 (1945)). While this was the first time this court explicitly recognized the availability of such relief for ultra vires acts by the State, it offered no explanation why this departure from the constitution was appropriate. The case the court cited in support concerned ultra vires acts of county officials rather thаn state actors. Shellnut, 222 Ark. At 31, 258 S.W.2d at 574 (citing Jensen v. Radio Broad. Co., 208 Ark. At 520, 186 S.W.2d at 932).
Though similar to ultra vires acts, this court recognized an exception to sovereign immunity for illegal state action only twenty-eight years after ratification. In McConnell v. Arkansas Brick & Mfg. Co., this court affirmed an injunction against the Board of Commissioners of Arkansas State Penitentiary to stop the rescission of a contract via resolution. 70 Ark. 568, 589, 69 S.W. 559, 567 (1902). Though the court stated that “[n]o order of the court can be against the state, nor against the defendants to compel them to perform these duties as officers and agents of the state,” the majority found equitable relief appropriate when there was a valid, enforceable contrаct. Id. at 591, 69 S.W. at 564, 567. This inconsistent reasoning drew the ire of three dissenting justices, but seven years later, this court overruled McConnell and held that there was no vested right to sue the State. Pitcock v. State, 91 Ark. 527, 539, 121 S.W. 742, 746 (1909); accord Caldwell v. Donaghey, 108 Ark. 60, 66, 156 S.W. 839, 842 (1913) (holding that the lawsuit cannot be maintained because it‘s against the State). Yet, this court once more reversed course and again recognized an exception for illegal acts forty years later--the same court that decided Shellnut. Fed. Compress & Warehouse Co. v. Call, 221 Ark. 537, 541, 254 S.W.2d 319, 321 (1953).
In Hickenbottom v. McCain, this court held that sovereign immunity did not bar a lawsuit challenging the constitutionality of the Employment Security Division in the Department of Labor because the relief would impose no obligation on the State. 207 Ark. 485, 490, 181 S.W.2d 226, 228 (1944).33 This exception was apparently unknown until
seventy years after ratification of our current constitutiоn. See id. As with the exceptions for illegal acts and ultra vires acts, decades passed between the State‘s adoption of sovereign immunity and any assumption that the defense was not absolute. And although the ratifying generation‘s interpretation of the constitution is not infallible, it is as persuasive as the concurrence‘s historical analysis of the Constitutional Convention‘s apparent intentions. Cf. Mark H. Allison, Sovereign Immunity: Holford Bonds, the Brooks-Baxter War, and the Constitutional Convention of 1874, Ark. Law., Winter 2019, at 44; cf. Walter Nunn, The Constitutional Convention of 1874, Arkansas Historical Association, The Arkansas Historical Quarterly 177, 182 (Winter 1968). Simply put, Shellnut, Hickenbottom, McConnell, and Federal Compress do not sufficiently explain why we should depart from the clear text of our constitution; their disregard of the plain text of
There is no legitimate reason for this court‘s decision to depart from such a clear textual command. The drafters of our constitution chose to never permit a lawsuit in Arkansas courts when the State is a defendant.
Insofar as the concurrence focuses the constitution‘s use of state in
driven jurisprudence, and, further, it confuses “rhetoric” and “political discourse” with recognition of its judicial philosophy.
Despite its legal shortcomings, I join the concurrence‘s lamentation of the costs оf this interpretation. Indeed, there are legitimate policy considerations for the protection of our citizens that weigh in favor of creation of the exceptions. There are undoubtedly times when the State and its officials injure the public. But results oriented jurisprudence perverts the role of the judiciary. See, e.g., Lawrence v. Texas, 539 U.S. 558, 592 (2003) (Scalia, J., dissenting).
When the constitution is clear in its language, as it is here, there is no need for further interpretation. The structural design of our constitution dictates that the power to change
(holding that Congress can abrogate sovereign immunity when legislating under its power to enforce the
Although this marks a momentous departure from this court‘s precedent, multiple wrongs do not make a right. When this court‘s precedent so clearly conflicts with our constitution, we must not blindly follow it for the sake of stare decisis. See Edwards v. Thomas, 2021 Ark. 140, at 27, 625 S.W.3d 226, 240-41 (Webb, J., сoncurring in part and dissenting in part). Stare decisis is an important principle that provides consistency to legal interpretation, but it is more important that we not cleave to mistakes simply because we have maintained them for decades. The common law doctrine of sovereign immunity springs from the theory that “the King can do no wrong.” A version of that policy was adopted for the state of Arkansas when the people, as is their right, ratified our current constitution. We must be cautious not to let stare decisis become so absolute in our opinions that we view it as “the court can do no wrong.” We took an oath to uphold the Arkansas Constitution, not the Arkansas Reports.
Although I have either written or joined opinions36 that recognized exceptions to
position.” South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2100 (2018) (Thomas, J., concurring) (cleaned up). A careful study of our constitution and recognition that it controls this State‘s law rather than our precedent makes this departure not only appropriate but also necessary.
For these reasons, I respectfully dissent.
Leslie Rutledge, Att‘y Gen., by: Michael A. Mosley, Ass‘t Att‘y Gen., for appellants.
Kutak Rock LLP, by: Jess Askew III, for appellees.