dismissing based on sovereign immunity despite the failure to raise the issue as an affirmative defense
How later courts described this case
- dismissing based on sovereign immunity despite the failure to raise the issue as an affirmative defense
Written by the judges who cited it.
The opinion
Josephine Linker Hart, Justice dissenting.
The court failed to conduct a proper constitutional analysis in Board of Trustees v. Andrews , 2018 Ark. 12 , 535 S.W.3d 616 , and as a result, Andrews was wrongly decided. The Arkansas Constitution is a complex legal document that, to be properly interpreted, requires harmonizing a large number of related provisions. Wright v. Ward , 170 Ark. 464 , 467, 280 S.W. 369 , 370-71 (1926) ; see also Ark. Dep't of Comm. Corr. v. Barnes , 2018 Ark. 122 , 542 S.W.3d 841 (Hart, J., dissenting); City of Jacksonville v. Smith , 2018 Ark. 87 , 540 S.W.3d 661 (Hart J., dissenting); Bd. of Trs. v. Andrews , 2018 Ark. 12 , 535 S.W.3d 616 (Baker, J., dissenting). No majority opinion from this court has ever undertaken this type of analysis.
Despite the overbroad holding in Andrews , it does not annul the right of a citizen to seek redress in the courts of this state if a public official has engaged in an ultra vires act. This right is not affected *356 by article 5, section 20 and cannot be canceled by a decision of this court.
I submit that hiring a person and refusing to pay that person in accordance with the laws of this state is an ultra vires act. Article 2, section 8 of the Arkansas Constitution guarantees that no person shall be denied his property without due process of law. A person's lawfully earned wages are without question property. Accordingly, the circuit court did not err in refusing to dismiss this case pursuant to article 5, section 20.
I dissent.