The opinion
Mr. Don Dunn, Chairman Board of Developmental Disabilities Services Arkansas Department of Human Services Division of Developmental Disabilities Services Donaghey Plaza North P.O. Box 1437 Little Rock, Arkansas 72203-1437
Dear Mr. Dunn:
This is in response to your request for an opinion on the following questions:
Under Arkansas law, can a county or municipal corporation exercise eminent domain over land held by the State when this land is being used for a public purpose by a Department of the State? Can a county or municipal corporation exercise eminent domain over the land that makes up the campuses of the six human development centers?
You explain that the Board of Developmental Disabilities Services was created under A.C.A. § 20-48-203 (Repl. 1991) and manages six human development centers owned by the State of Arkansas. You state that the centers provide public employment and exist to benefit members of the public having developmental disabilities.
You do not indicate which, if any, county or municipality contemplates the condemnation of all or part of a human development center, the use to which any property thereby taken will be put, or under what statutory authority such condemnation is contemplated.
In my opinion, the answer to both of your questions is "no." Article 5 , section 20 , of the Constitution of Arkansas provides that "[t]he State of Arkansas shall never be made defendant in any of her courts." In Linwood Auburn Levee Dist. v. State, 121 Ark. 489 , 181 S.W. 892 (1915), the Supreme Court of Arkansas held that a suit to condemn property owned and used by the state for a public purpose (there, a penitentiary), for the purpose of constructing a levee thereon, constituted a suit against the state within the prohibition of Ark. Const. art. 5 , § 20 .
It seems clear that the state-owned property constituting the human development centers is being used for a public purpose. It is therefore my opinion that the holding in Linwood Auburn would control in the event of an attempt by a county or municipality to take, by the power of eminent domain, all or part of the property making up any human development center.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General J. Madison Barker.
Sincerely,
WINSTON BRYANT Attorney General
WB:JMB/cyh