holding that the prospect of irreparable harm is the foundation of the power to issue injunctive relief
How later courts described this case
- holding that the prospect of irreparable harm is the foundation of the power to issue injunctive relief
Written by the judges who cited it.
The opinion
Cite as 2025 Ark. 102
SUPREME COURT OF ARKANSAS
No. CV-24-199
Opinion Delivered: June 5, 2025
SARAH SANDERS, IN HER
OFFICIAL CAPACITY AS
GOVERNOR OF ARKANSAS; APPEAL FROM THE PULASKI
LINDSAY WALLACE, IN HER COUNTY CIRCUIT COURT
OFFICIAL CAPACITY AS [NO. 60CV-23-9598]
SECRETARY OF THE ARKANSAS
DEPARTMENT OF CORRECTIONS; HONORABLE PATRICIA JAMES,
AND THE ARKANSAS JUDGE
DEPARTMENT OF CORRECTIONS
APPELLANTS
MOTION TO REMAND WITH
V. INSTRUCTIONS TO VACATE
PRELIMINARY INJUNCTION AND
ARKANSAS BOARD OF DISMISS AS MOOT DENIED;
CORRECTIONS; AND BENNY MOTION TO DISQUALIFY
MAGNESS, IN HIS OFFICIAL DISMISSED; AFFIRMED.
CAPACITY AS CHAIRMAN OF THE
ARKANSAS BOARD OF
CORRECTIONS
APPELLEES
KAREN R. BAKER, Chief Justice
Appellants Sarah Sanders, in her official capacity as Governor of Arkansas; Lindsay
Wallace, in her official capacity as Secretary of the Arkansas Department of Corrections;1
and the Arkansas Department of Corrections appeal the Pulaski County Circuit Court’s
1
When the complaint was filed, Joe Profiri was the Secretary of the Arkansas
Department of Corrections. The underlying facts of this appeal arose during his tenure as
Secretary. However, Lindsay Wallace is currently the Secretary of the Arkansas Department
of Corrections.
order granting a preliminary injunction in favor of appellees Arkansas Board of Corrections;
and Benny Magness, in his official capacity as chairman of the Arkansas Board of Corrections
(collectively, the “Board”). In this interlocutory appeal, appellants argue that the circuit
court erred in concluding that the Board showed irreparable harm. We affirm.
On December 14, 2023, the Board filed its complaint against appellants seeking
declaratory and injunctive relief. The Board took issue with the constitutionality of Acts
185 and 659 of 2023 (collectively, the “Challenged Legislation”). According to the Board,
amendment 33 of the Arkansas Constitution protects the vested powers of constitutional
boards like the Board from usurpation by the Governor or the General Assembly, or both.
The Board claimed that despite the plain text of amendment 33, Act 185 amended Arkansas
Code Annotated section 25-43-403(a)(2)(A) (Repl. 2024) to require the Secretary to serve
at the pleasure of the Governor rather than the Board, and Act 659 amended sections 12-
27-107(c) (Supp. 2023) and 12-27-126(c) (Supp. 2023) to alter the reporting structure for
the directors of the Division of Correction and the Division of Community Correction,
requiring them to serve at the pleasure of the Secretary rather than at the pleasure of the
Board. The Board sought a declaratory judgment that the Challenged Legislation is illegal,
ultra vires, and otherwise unconstitutional under amendment 33. The Board also sought a
permanent injunction restraining appellants from enforcing the Challenged Legislation.
On December 14, the Board held an emergency meeting. During the meeting, the
Board authorized the filing of the present lawsuit and voted to place Secretary Profiri on
leave-with-pay status pending further order of the circuit court. The Board contended that
a temporary restraining order (TRO) or preliminary injunction was necessary. The Board
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further alleged that an immediate restraining order was necessary to restore the status quo,
protect the Board’s power under amendment 33, and allow the Board to effectively manage
the Secretary of Corrections.
On the same day, the Board filed its separate motion for a TRO or preliminary
injunction. The Board requested that the circuit court temporarily restrain or preliminarily
enjoin appellants from enforcing the Challenged Legislation. The Board explained that it is
likely to succeed on the merits, and absent a TRO or preliminary injunction, the Board will
continue to suffer irreparable harm.
On December 15, the circuit court granted the TRO enjoining enforcement of the
Challenged Legislation. The circuit court explained that a justiciable controversy existed
among the parties because the Board plausibly alleged that the Challenged Legislation
unlawfully transferred the Board’s power to manage and oversee the Department of
Corrections—including the Secretary of Corrections and the directors of the Division of
Correction and the Division of Community Correction—to the Governor and the Secretary
of Corrections. The circuit court also set a hearing to determine whether the TRO should
be converted to a preliminary injunction.
On December 18, appellants filed a motion to dismiss the Board’s complaint and a
motion to disqualify the Board’s special counsel, Abtin Mehdizadegan. Appellants argued
that his representation was in violation of Ark. Code Ann. § 25-16-702 (Repl. 2024),
because the Board did not obtain the requisite approval before retaining Mehdizadegan.
Appellants argued that section 25-16-711 (Repl. 2024), which the Board relies on for
authority to hire special counsel, does not apply because the Board is not a “constitutional
3
officer” as required by the statute. On December 20, the Board filed an emergency motion
to disqualify the Office of the Attorney General explaining that the Attorney General
currently represents the individual members of the Board in a federal class-action lawsuit.
However, the Board argued that because it never waived a conflict with the Attorney
General, the Attorney General’s Office must be disqualified from further proceedings in this
action.
A hearing was held on January 4, 2024. Magness testified as to the following facts.
He has served on the Board for twenty-four years and has been the Board’s chairman for
nineteen years. Magness testified that the Board’s role is to manage the operation of the
Department of Corrections. Magness testified about a November 6, 2023 letter from
Director Payne requesting approval for an additional 622 beds. Additional beds were
requested for Ouachita River Correctional Unit, North Central Unit, Ester Unit,
McPherson Unit, and Max Unit. Magness testified that it was his understanding that
Director Payne prepared this request at the direction of Secretary Profiri. Magness later
learned that Secretary Profiri had already added beds to the Ouachita and North Central
Units prior to submitting this request to the Board. The Board ultimately approved the
additional beds for the Ouachita and North Central Units at the November 6 meeting and
later approved all the requested beds except the Max Unit beds due to staffing shortages.
On January 19, the circuit court entered its order. The circuit court denied the
Board’s motion to disqualify the Attorney General’s Office.2 The circuit court denied
2
The circuit court noted its concern regarding Senior Assistant Attorney General
Christine Cryer’s prior employment with the Department of Corrections. The court noted
that while there is no allegation that Cryer did anything improper, the appearance of
4
Governor Sanders’s motion to disqualify Mehdizadegan and his firm as special counsel,
explaining that the Board is a constitutionally created board, making its members
constitutional officers for purposes of Ark. Code Ann. § 25-16-711. The motion to dismiss
was also denied. As to the preliminary injunction, the circuit court found that the Board
was entitled to relief because it had demonstrated irreparable harm in the absence of an
injunction and likelihood of success on the merits. Accordingly, the circuit court granted
the motion for preliminary injunction and enforcement of the Challenged Legislation
remained enjoined.
Appellants timely filed a notice of appeal. After the appeal was lodged in this court,
appellants filed two motions with this court: (1) on July 24, 2024, a motion to remand with
instructions to vacate the preliminary injunction and dismiss as moot and (2) on March 7,
2025, a motion to disqualify the Board’s counsel from further participation in proceedings
before this court. We took both motions with the case.
I. Motion to Remand
We first turn to appellants’ motion to remand with instructions to vacate the
preliminary injunction and dismiss as moot. Appellants argue that the controversy giving
rise to the dispute ended when the Board fired Secretary Profiri. They assert that because
Secretary Profiri was fired prior to the entry of the preliminary injunction, the circuit court’s
impropriety was concerning. The circuit court ordered that Cryer and Assistant Attorney
General Justin Brascher no longer participate in the case. We note that Cryer and Brascher
filed a motion to withdraw as counsel on January 5, 2024. On January 9, the circuit court
entered its order withdrawing Cryer and Brascher as counsel.
5
finding of irreparable harm was erroneous. Additionally, appellants assert that as soon as
Profiri was no longer serving as Secretary, this mooted the controversy between the parties.
The Board responds that it did not seek relief to fire former Secretary Profiri. Instead,
the Board sought injunctive relief to enjoin the enforcement of the Challenged Legislation
and declaratory relief regarding the powers of the Board under amendment 33. Secretary
Profiri’s termination does not resolve the ultimate question of whether the Board controls
the Secretary and the division directors. Therefore, the dispute between the parties is not
personal to the specific individual holding the Secretary’s office.
As a general rule, the appellate courts of this state will not review issues that are moot
because to do so would be to render an advisory opinion. Lott v. Langley, 2013 Ark. 247
(citing Allison v. Lee Cnty. Election Comm’n, 359 Ark. 388, 198 S.W.3d 113 (2004)).
Generally, a case becomes moot when any judgment rendered would have no practical legal
effect upon a then-existing legal controversy. Id.
The Board’s complaint concerns the Challenged Legislation and the resulting changes
to the Board’s supervisory authority. This dispute exists notwithstanding the individual who
holds the Secretary position and is not personal to Secretary Profiri. Further, because this
case presents an existing legal controversy, it is not moot. Therefore, we deny appellants’
motion to remand.
II. Motion to Disqualify
Next, appellants filed a motion to disqualify the Board’s counsel, arguing that the
Board’s counsel must be disqualified from further representing the Board before this court
because the firm’s retention was illegal. Appellants argue that the Board did not follow the
6
mandatory process set out in Ark. Code. Ann. § 25-16-702 for securing outside counsel. It
is appellants’ position that section 25-16-711 did not provide the Board with authority to
hire special counsel because the Board is not a constitutional officer.
As stated above, the circuit court denied appellants’ motion to disqualify the Board’s
counsel. The circuit court explained that the Board is a constitutionally created board,
making its members constitutional officers for purposes of section 25-16-711. Thus, the
circuit court found that the Board had the legal authority to hire special counsel pursuant
to section 25-16-711.
The Board correctly points out that “an order denying a motion to disqualify
adversary’s counsel in a civil proceeding is not an appealable final order.” Clark v. Clark,
319 Ark. 193, 196–97, 890 S.W.2d 267, 269 (1995). “As a general rule, an appeal from an
interlocutory decision brings up for review only the decision from which the appeal was
taken, here, the granting of an injunction.” Villines v. Harris, 340 Ark. 319, 323, 11 S.W.3d
516, 518 (2000). Accordingly, because the motion to disqualify is outside the scope of our
interlocutory review of the order granting the preliminary injunction, we dismiss the motion
to disqualify.
III. Preliminary Injunction
Regarding the merits of this appeal, appellants argue that the circuit court erred in
issuing the preliminary injunction because the Board failed to demonstrate irreparable harm.
Appellants do not challenge the Board’s likelihood of success on the merits.
In determining whether to issue a preliminary injunction pursuant to Arkansas Rule
of Civil Procedure 65, the circuit court must consider two things: (1) whether irreparable
7
harm will result in the absence of an injunction, and (2) whether the moving party has
demonstrated a likelihood of success on the merits. Baptist Health v. Murphy, 365 Ark. 115,
226 S.W.3d 800 (2006). This court reviews the grant of a preliminary injunction under an
abuse-of-discretion standard. Id. The standard of review is the same for the two essential
components of a preliminary injunction: irreparable harm and likelihood of success on the
merits. Id. There may be factual findings by a circuit court that lead to conclusions of
irreparable harm and likelihood of success on the merits, and those findings shall not be set
aside unless clearly erroneous, but a conclusion that irreparable harm will result or that the
party requesting the injunction is likely to succeed on the merits is subject to review under
an abuse-of-discretion standard. Id.
When an appeal reaches a court via an order granting a preliminary injunction, the
appellate court will not delve into the merits of the case further than is necessary to
determine whether the circuit court exceeded its discretion in granting the injunction. Id.
The sole question before the appellate court is whether the circuit court “departed from the
rules and principles of equity in making the order”––and not whether the appellate court
would have made the order. Id. at 121–22, 226 S.W.3d at 806–07.
Irreparable harm is “the touchstone of injunctive relief.” United Food & Commercial
Workers Int’l Union v. Wal-Mart Stores, Inc., 353 Ark. 902, 905–07, 120 S.W.3d 89, 92 (2003)
(citing Wilson v. Pulaski Ass’n of Classroom Teachers, 330 Ark. 298, 954 S.W.2d 221 (1997)
(holding that the prospect of irreparable harm is the foundation of the power to issue
injunctive relief)). Further, we have said that harm is normally considered irreparable only
8
when it cannot be adequately compensated by money damages or redressed in a court of
law. AJ&K Operating Co., Inc. v. Smith, 355 Ark. 510, 140 S.W.3d 475 (2004).
On the issue of irreparable harm, the circuit court found that, in light of obvious
institutional and public safety issues impacted by management decisions within the
Department of Corrections, the balance of the equities weighed heavily in favor of enjoining
the Challenged Legislation when measured against the importance of immediate
enforcement of Acts 185 and 659. The circuit court explained that this harm cannot be
adequately compensated by money damages and that the dispute will clearly be ongoing
until this matter is fully resolved.
Appellants challenge the preliminary-injunction order on multiple grounds related
to whether the Board demonstrated irreparable harm. First, appellants argue that any
possibility that former Secretary Profiri could “disobey” the Board evaporated once the
Board terminated Profiri—before the preliminary injunction was entered. Second,
appellants argue that the Board failed to demonstrate irreparable harm because the Board
approved additional bed space after Secretary Profiri made the request. As stated above, the
Board’s complaint concerns the Challenged Legislation and the resulting changes to the
Board’s authority. The Board alleged that its vested constitutional rights under amendment
33 were violated not by Secretary Profiri as an individual but by the Challenged Legislation
authorizing appellants’ actions. Again, this dispute exists notwithstanding the individual
holding the Secretary position and is not personal to Secretary Profiri.
Also, appellants argue that the Board could not demonstrate irreparable harm because
the Board had governing authority to undo Secretary Profiri’s actions. Specifically,
9
appellants argue that even before the Board terminated Secretary Profiri, the Board could
not show irreparable harm because the Board itself could have simply undone his actions
with which they disagreed. As the Board points out, this argument would prevent challenges
to the constitutionality of legislation simply because the unconstitutional acts could be
undone. Thus, we do not find appellants’ argument persuasive.
While we review the entire decision granting the temporary injunction under an
abuse-of-discretion standard, we have repeatedly said that the circuit court’s factual findings
will not be set aside on review unless they are clearly erroneous. See Baptist Health, supra; see
also Gulley v. State ex rel. Jegley, 2023 Ark. 70, 664 S.W.3d 421. We conclude that the circuit
court’s factual findings that there would be irreparable harm were not clearly erroneous.
The crux of the Board’s lawsuit is whether the Board retains the ultimate authority to direct
the Secretary and the directors or whether the Challenged Legislation now gives the
Governor and the Secretary that authority. The evidence presented to the circuit court
demonstrates that, in the absence of the injunction, the dispute will be ongoing until the
constitutionality of the Challenged Legislation is resolved. This, coupled with appellants’
failure to even argue their likelihood of success on the merits, leaves us with little choice
under our deferential standard of review. We hold that the circuit court did not abuse its
discretion in determining that the Board demonstrated that irreparable harm would result
in the absence of the requested preliminary injunction, and we affirm.
Motion to remand with instructions to vacate preliminary injunction and dismiss as
moot denied; motion to disqualify dismissed; affirmed.
Special Justices TROY BRASWELL and BUD CUMMINS join.
10
WEBB, J., concurs in part and dissents in part.
WOMACK, J., dissents.
HILAND and BRONNI, JJ., not participating.
BARBARA W. WEBB, Justice, concurring in part and dissenting in part. I
agree with the majority that this matter is not moot, as Secretary Profiri’s termination does
not resolve the question whether Acts 185 and 659 of 2023 are constitutional. I further
agree that disqualification of the Board’s counsel is not appropriate at this moment.1
However, the Board failed to demonstrate irreparable harm. The circuit court therefore erred
by enjoining the challenged acts.
The prospect of irreparable harm or lack of an otherwise adequate remedy is the
foundation of the power to issue injunctive relief. Wilson v. Pulaski Ass’n of Classroom
Teachers, 330 Ark. 298, 954 S.W.2d 221 (1997). Harm is normally considered irreparable
only when it cannot be adequately compensated by money damages or redressed in a court
of law. Three Sisters Petroleum v. Langley, 348 Ark. 167, 72 S.W.3d 95 (2002).
The crux of the Board’s claim for irreparable harm was Secretary Profiri’s alleged acts
of insubordination, which were directly attributable to Act 185 requiring the Secretary to
serve at the pleasure of the Governor rather than the Board. This harm is not irreparable.
The term “irreparable” is defined as “[i]ncapable of being rectified, restored, remedied,
cured, regained or repaired; that cannot be made right or good.” Irreparable, Black’s Law
Dictionary (12th ed. 2024). In response to Secretary Profiri’s alleged insubordination, the
1
I note that the Board’s hiring of special counsel may represent an illegal exaction
under article 16, section 13 of the Arkansas Constitution.
11
Board initially placed him on leave before terminating him altogether. This occurred before
the injunction was entered. Both parties acknowledge that Secretary Profiri has been
removed. Further, the Board retains the authority to rescind any of Secretary Profiri’s
actions. See Ark. Code Ann. 25-43-401(b)(1)(B) (Repl. 2024) (providing that the Board is
the governing authority of the Department of Corrections).
By definition, if a secretary may be terminated and his actions undone, then it cannot
be said that any harm resulting therefrom is “irreparable.” Accordingly, the circuit court
erred in granting injunctive relief.
I concur in part and dissent in part.
WOMACK, J., joins.
SHAWN A. WOMACK, Justice, dissenting. Because sovereign immunity bars the
Board of Corrections’ lawsuit against Governor Sanders, Secretary Wallace, and the
Department of Corrections, this court must vacate the preliminary injunction and dismiss
the lawsuit.1 Even if that was not so, the Board would still lose because it failed to show
irreparable harm—a necessary element to establish entitlement to a preliminary injunction.2
Therefore, I also join the other dissenting opinion in this case. On the issue of the
disqualification of the Board’s potentially illegally retained counsel, I again remind the
1
Griffin v. Ark. Bd. of Corrs., 2025 Ark. 81, at 11 (Womack, J., dissenting) (“[I]n those
rare instances when the State is both the plaintiff and the defendant—as it is here—sovereign
immunity applies, and the underlying lawsuit is barred.”); see also Thurston v. League of
Women Voters of Ark., 2022 Ark. 32, at 17, 639 S.W.3d 319, 327 (Womack, J., dissenting)
(“[A]bsent an express constitutional provision to the contrary[,]” the State “shall never be a
defendant in any of its courts.”).
2
Ark. Dep’t of Educ. v. Jackson, 2023 Ark. 105, at 7, 669 S.W.3d 1, 6.
12
citizens of this state of their ability to protect themselves “against the enforcement of any
illegal exactions whatever.”3
I respectfully dissent.
Tim Griffin, Att’y Gen., by: Dylan L. Jacobs, Deputy Solicitor Gen., for appellants.
Hall, Booth Smith, P.C., by: Abtin Mehdizadegan, Joseph M. Kraska, Joseph C. Stepina,
and Julie A. Hill, for appellees.
3
Ark. Const. art. 16, § 13; see also Griffin, 2025 Ark. 81, at 12–13 (Womack, J.,
dissenting).
13