holding the state statute did not expressly waive immunity
How later courts described this case
- holding the state statute did not expressly waive immunity
- addressing sovereign immunity first andRnot ruling on venue when both sovereign immunity and venue were challenged in the same appeal
Written by the judges who cited it.
The opinion
KAREN R. BAKER, Justice, dissenting.
The majority erroneously concludes that the General Assembly did not intend to waive the State’s sovereign immunity in Ark.Code Ann. § 16-93-1603 (Supp.2011). I respectfully dissent.
Section 16-93-1603(c) provides that the Board shall promulgate rules that “shall include at least the following”:
(1) Compliance with any local health and safety codes, including housing codes, fire codes, plumbing codes, and electrical codes, set by the jurisdiction or jurisdictions in which the transitional housing facility is located;
(2) Compliance with any local zoning ordinances;
(3) Compliance with any state and federal health and safety codes;
(4) Consideration of geographic dis-persement of transitional housing facilities;
(5) Allowable ratio of transitional housing facility square footage to residents; and
(6) Allowable ratio of bathing facilities and restroom facilities to residents
In reviewing the requirements for transitional housing facilities, Ark. Code Ann. Imsection 16-93-1601 (Supp.2011) states that the intent of the General Assembly is “to provide regulations to protect the individuals in the programs and to protect the neighborhoods and communities in which the programs and facilities are located.” The language “shall include at least the following” comports with the stated intent of the General Assembly under section 16-93-1601, as the requirements serve to provide a safe environment for the parolees as well as the surrounding community.
In Weiss v. McLemore, 371 Ark. 538 , 268 S.W.3d 897 (2007), we addressed the waiver of sovereign immunity. In that case, several Arkansas State Police officers brought a class-action lawsuit against the State contending that the Arkansas State Police Retirement System (ASPRS) had been underfunded. The State argued that the General Assembly did not intend to waive its sovereign immunity when the pertinent statute did not expressly declare that the State may be sued. Id. at 543 , 268 S.W.3d at 901 . In Weiss, the pertinent statute provided that, in the event of an error, the Board of Trustees of the ASPRS “shall correct the error” and “shall adjust the payment” so that the retiree may be paid correctly. Id. We considered this to be mandatory language, and stated that “it can easily be inferred that the legislature intended to waive the State’s sovereign immunity so that an underpaid retiree might sue to have his or her underpayment corrected.” Id. at 544 , 268 S.W.3d at 902 . Further, we explained that any other interpretation would eviscerate the purpose of the statute. Id.
By including the language “shall include at least the following” the General Assembly clearly did not intend for the Board to disregard the minimum requirements of section 16-93-1603(c) and did not intend for the State to be able to claim the protection of sovereign |uimmunity. As in Weiss, the language “shall include at least the following” should be considered mandatory.
Additionally, precluding the City of Pine Bluff from seeking recourse will eviscerate the purpose of the statute. In fact, the majority’s holding provides that not only is it discretionary with the Board whether or not they will comply with local zoning ordinances but that the Board may also disregard all of section 16-93-1603’s requirements, including compliance with state and federal health and safety codes, fire codes as well as plumbing codes. This is a absurd result that directly conflicts with the legislature’s stated purpose. Accordingly, I would affirm the circuit court’s finding that the legislature created an implied waiver of sovereign immunity in section 16-93-1603(c).
HART, J., joins in this dissent.