Ark. Cmty. Corr. v. Barnes ( 2018 )

Robin F. Wynne, Justice, concurring.

I agree with the majority that the legislative waiver of the state's sovereign immunity contained in the Arkansas Whistle-Blower Act (AWBA), Arkansas Code Annotated sections 21-1-601 et seq. (Repl. 2016), is unconstitutional for the reasons outlined in our decision in Board of Trustees v. Andrews , 2018 Ark. 12, 535 S.W.3d 616, a case involving the Arkansas Minimum Wage Act (AMWA). I write separately to explain the reasoning behind my agreement.

Article 5, § 20 of the Arkansas Constitution prohibits the State of Arkansas from being made a defendant in any of her courts. The purported waiver of sovereign immunity contained in the AWBA seeks, by its own operation, to override Article 5, § 20. This case and Andrews stand for the proposition that the legislature does not have the authority to override Article 5, § 20. I feel it imperative to note that this is the only proposition for which these cases stand regarding the state's constitutional immunity from suit, as it was the only issue before this court in either case. The purported waivers contained in the AMWA and AWBA are unconstitutional. The question of whether there exist any circumstances under which a state actor may be sued under these acts is not addressed in this case or Andrews , and remains for another time.