The opinion
Cite as 2025 Ark. 34
SUPREME COURT OF ARKANSAS
No. CV-24-712
Opinion Delivered: April 10, 2025
JONATHAN BRIZENDINE AND
MELISSA BRIZENDINE
APPELLANTS APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT
[NO. 60CV-23-4595]
V.
HONORABLE LATONYA
DEPARTMENT OF HUMAN HONORABLE, JUDGE
SERVICES OF THE STATE OF
ARKANSAS; THE CHILD WELFARE
AGENCY REVIEW BOARD; AVERY AFFIRMED.
CARTER, IN HIS OFFICIAL
CAPACITY AS PROGRAM
ADMINISTRATOR FOR DIVISION
OF CHILDREN AND FAMILY
SERVICES; AND ARKANSAS
GOVERNOR SARAH HUCKABEE
SANDERS
APPELLEES
BARBARA W. WEBB, Justice
This matter involves the denial of appellants Jonathan and Melissa Brizendine’s foster-
parent application. At issue in the present appeal is whether sovereign immunity precludes
appellants’ lawsuit against the Arkansas Department of Human Services (DHS); the Child
Welfare Agency Review Board; Avery Carter in his official capacity as Program
Administrator for the Division of Children and Family Services, and Arkansas Governor
Sarah Huckabee Sanders (collectively, “State appellees”). Appellants appeal from the circuit
court’s grant of motions to dismiss in favor of the State. We affirm.
In January 2022, appellants contacted DHS to begin the process of becoming foster
parents. After appellants completed the application, a DHS employee conducted a home
visit. During the home visit, appellants were asked numerous questions, including their
religious affiliation, if any. Appellants answered that they were non-religious. The DHS
employee noted the response and continued the interview. Following the visit, appellants
were asked to provide additional information on Melissa’s PTSD and medical-marijuana
use. On May 19, 2022, DHS sent appellants a letter informing them that their foster-parent
application had been denied.
Appellants filed a complaint on June 8, 2023, against State appellees seeking
declaratory and injunctive relief. The complaint alleged that appellants’ application was
denied on the basis of their answers to questions regarding their religious preferences and
pharmaceutical use. Specifically, appellants asserted that DHS denied their application
because they are atheists and engage in medical-marijuana use. As such, appellants alleged
DHS violated article 2, section 24 of the Arkansas Constitution, the Religious Freedom
Restoration Act, Ark. Code Ann. §§ 16-123-401 et seq. (Repl. 2016 & Supp. 2023), and
amendment 98 of the Arkansas Constitution, commonly known as the Arkansas Medical
Marijuana Amendment of 2016.
State appellees moved to dismiss based on sovereign immunity, arguing that
appellants failed to plead sufficient facts that the State’s actions were illegal or
unconstitutional. Following a hearing, the circuit court granted dismissal in favor of State
appellees. It concluded that appellants’ complaint failed to state a claim under Arkansas Rule
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of Civil Procedure 12(b)(6) and that State appellees were entitled to sovereign immunity.
This appeal followed.
When reviewing a circuit court’s decision on 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.
Ark. Dev. Fin. Auth. v. Wiley, 2020 Ark. 395, 611 S.W.3d 493. We look only to the
allegations in the complaint and not to matters outside the complaint. Id. We treat only the
facts alleged in the complaint as true but not a plaintiff’s theories, speculation, or statutory
interpretation. Ark. State Plant Bd. v. McCarty, 2019 Ark. 214, 576 S.W.3d 473. Whether a
party is immune from suit is purely a question of law that we review de novo. Milligan v.
Singer, 2019 Ark. 177, 574 S.W.3d 653.
The defense of sovereign immunity is inapplicable in a lawsuit seeking only
declaratory or injunctive relief and alleging an illegal, unconstitutional, or ultra vires act.
Hutchinson v. Armstrong, 2022 Ark. 59, 640 S.W.3d 395. A plaintiff seeking to surmount
sovereign immunity under this exception is not exempt from complying with our fact-
pleading requirements. Banks v. Jones, 2019 Ark. 204, 575 S.W.3d 111. The complaint must
provide facts to state a claim based on the alleged illegal, unconstitutional, or ultra vires state
action, and short, conclusory statements and bare allegations will not do. Id.
Appellants contend they pleaded sufficient facts to surmount sovereign immunity.
Their complaint alleged that they “were compelled to fill out a questionnaire about their
religious preferences and pharmaceutical use” and that their “answers to the questionnaire
provided by [DHS] had a prejudicial impact on [DHS]’s denial of their request to be foster
parents.”
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Appellants’ assertion that their foster-parent application was denied on the basis of
their answers to questions regarding their religious preferences and medical-marijuana use
is entirely speculative. Foster-parent applicants are required to answer many questions and
provide ample personal information so that DHS may make an informed decision regarding
the placement of children. Nothing aside from appellants’ conclusory allegations suggests
that DHS denied their application for the reasons they assert. Appellants’ threadbare
complaint fails to meet our fact-pleading requirements to establish an illegal,
unconstitutional, or ultra vires act with respect to DHS, such that sovereign immunity
would not apply. In addition, appellants’ complaint did not plead any facts establishing the
involvement of Governor Sanders or the Child Welfare Agency Review Board with the
foster-parent application. Accordingly, the circuit court correctly found that State appellees
were entitled to sovereign immunity.
Affirmed.
BAKER, C.J., and WOMACK, J., concur.
HUDSON, J., concurs in part and dissents in part.
KAREN R. BAKER, Chief Justice, concurring. I agree with the majority’s
disposition; however, I write separately for the reasons stated in my dissent in Board of
Trustees of the University of Arkansas v. Andrews, 2018 Ark. 12, at 13, 535 S.W.3d 616, 624,
and its progeny.
In the present case, the majority states that “[t]he defense of sovereign immunity is
inapplicable in a lawsuit seeking only declaratory or injunctive relief and alleging an illegal,
unconstitutional, or ultra vires act. A plaintiff seeking to surmount sovereign immunity
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under this exception is not exempt from complying with our fact-pleading requirements.”
(Internal citations omitted.) On the basis of this reasoning, the majority concludes that
“[a]ppellants’ threadbare complaint fails to meet our fact-pleading requirements to establish
an illegal, unconstitutional, or ultra vires act with respect to DHS, such that sovereign
immunity would not apply. In addition, appellants’ complaint did not plead any facts
establishing the involvement of Governor Sanders or the Child Welfare Agency Review
Board with the foster-parent application.” However, this position conflicts with the broad
language of Andrews. Article 5, section 20 of the Arkansas Constitution provides that “[t]he
State of Arkansas shall never be made defendant in any of her courts.” As explained by the
majority in Andrews, “[w]e interpret this constitutional provision, ‘The State of Arkansas
shall never be made a defendant in any of her courts,’ precisely as it reads.” 2018 Ark. 12,
at 10, 535 S.W.3d at 622. In other words, the majority held that “never means never,” and
Andrews did not identify exceptions, exemptions, or the like. See Banks v. Jones, 2019 Ark.
204, at 11, 575 S.W.3d 111, 118 (Baker, J., concurring); see also Ark. Oil & Gas Comm’n v.
Hurd, 2018 Ark. 397, at 18, 564 S.W.3d 248, 258 (Baker, J., dissenting). Thus, until Andrews
is overruled, suit against the State is barred.
Here, appellants filed a complaint against the Arkansas Department of Human
Services, the Child Welfare Agency Review Board, Avery Carter in his official capacity as
Program Administrator for the Division of Children and Family Services, 1 and Governor
Sarah Huckabee Sanders, seeking to prohibit the reliance on an applicant’s religious
1
We have found that the doctrine of sovereign immunity includes state agencies and
that a suit against a public official in his or her official capacity is essentially a suit against that
official’s agency. Ark. State Med. Bd. v. Byers, 2017 Ark. 213, at 3, 521 S.W.3d 459, 462.
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preferences or medical-marijuana usage as a basis to deny a foster-family application. Because
the named appellees are state actors, the present suit is barred by sovereign immunity. This
is where my analysis would begin and end.
The majority’s analysis in the present case echoes the analysis in Banks v. Jones, in
which this court dismissed claims against Banks in his official capacity as the warden of the
Varner Unit of the Arkansas Department of Correction based on sovereign immunity due
to Jones’s alleged failure to comply with our fact-pleading requirements. 2019 Ark. 204,
575 S.W.3d 111. Specifically, the majority reasoned that “[a] plaintiff seeking to surmount
sovereign immunity [when the State acts illegally, unconstitutionally, or ultra vires] is not
exempt from complying with our fact pleading requirements,” and the allegations set forth
in Jones’s complaint were insufficient to surmount sovereign immunity because they
amounted to bare conclusions. Banks, 2019 Ark. 204, at 4, 575 S.W.3d at 115 (internal
citations omitted). However, as I explained in my concurrence, “based on Andrews, because
the State may never be sued—there is jurisdictional immunity from suit—Jones’s pleadings
are inconsequential.” Banks, 2019 Ark. 204, at 11, 575 S.W.3d at 118 (Baker, J.,
concurring). The same is true in the present case.
Accordingly, I must concur.
SHAWN A. WOMACK, Justice, concurring. The majority is correct to affirm the
dismissal of Jonathan and Melissa Brizendine’s lawsuit against the State because it is barred
by sovereign immunity. But the majority does so for the wrong reasons. “Nowhere does
the Arkansas Constitution contemplate an exception to sovereign immunity for
unconstitutional, illegal, or ultra vires acts; a conclusion otherwise is purely this court’s
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attempt at crafting public policy for the State.” 1 The majority’s focus on these
extraconstitutional exceptions to sovereign immunity is error. Instead, the circuit court
should have simply dismissed the Brizendines’ lawsuit pursuant to the plain text of Article
5, Section 20 of the Arkansas Constitution because there are no applicable express
constitutional provisions that allow the underlying claims to be brought against the State. 2
Therefore, I respectfully concur.
COURTNEY RAE HUDSON, Justice, concurring in part and dissenting in
part. I agree with the majority that dismissal was properly granted to the Child Welfare
Agency Review Board and to the Governor. However, because the Brizendines sufficiently
pleaded facts under Arkansas Rule of Civil Procedure 12(b)(6) to overcome dismissal for
sovereign immunity, I respectfully dissent as to the Arkansas Department of Human Services
and Avery Carter, in his official capacity (collectively, “DHS”).
The style of the case in this verified complaint named the Board and the Governor.
However, as the Board and the Governor correctly assert, there are no clear references to
either of them in the body of the complaint, nor are there any facts in the complaint that
even imply wrongdoing by either of those parties. This cannot meet our fact-pleading
standard requiring “a statement in ordinary and concise language of facts showing that . . .
the pleader is entitled to relief.” Ark. R. Civ. P. 8(a); Ark. Dev. Fin. Auth. v. Wiley, 2020
1
Thurston v. League of Women Voters of Ark., 2022 Ark. 32, at 16, 639 S.W.3d 319,
327 (Womack, J., dissenting).
2
Id. at 17, 639 S.W.3d at 327 (Womack, J., dissenting).
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Ark. 395, at 5, 611 S.W.3d 493, 498. Accordingly, the circuit court correctly held that the
Board and the Governor were entitled to sovereign immunity.
As to DHS, however, the complaint does plead sufficient facts. The Brizendines
alleged that they applied to become foster/adoptive parents and employed the services of a
non-profit organization called “Foster Love” to facilitate their application. They received a
certificate of completion from that organization. The Brizendines meet all requirements to
become foster parents in Arkansas. Nonetheless, DHS denied their application in a form
letter with “Results of the In-Home Consultation Visit” marked as the reason for their
denial. During the in-home visit, the Brizendines revealed that they have a religious belief
that God does not exist. It is not “entirely speculative” to allege, on these facts, that DHS’s
denial of their application to become foster parents was based on their unpopular religious
beliefs.
Taking all the facts in the complaint as true and viewing them in the light most
favorable to the plaintiffs, I believe that the Brizendines have pleaded sufficient facts to state
a claim of an illegal, unconstitutional, or ultra vires act by DHS. Accordingly, the circuit
court was incorrect when it found that DHS was entitled to sovereign immunity.
For the reasons outlined above, I concur in part and dissent in part.
Corbitt Law Firm, PLLC, by: Chris P Corbitt, for appellants.
Vincent P. France, Deputy Chief Counsel, Arkansas Dep’t of Human Servs., for
appellee Arkansas Dep’t of Human Services.
Tim Griffin, Att’y Gen., by: Sean M. Rowland, Ass’t Att’y Gen., for appellees
Governor Sarah Huckabee Sanders and the Child Welfare Agency Review Board.
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