The opinion
Jim FIannah, Chief Justice, concurring. I concur, but only to the extent that this court holds that Dermott Special School District v. Johnson, 343 Ark. 90 , 32 S.W. 3d 477 (2000), states the current law. The issue presented to this court by certification from the federal district court is not ripe for decision and involves a number of questions of fact that have not been decided. Amendment 80, § 2(D)(3), does provide this court with original jurisdiction to answer questions of state law certified by a court of the United States. Original jurisdiction means the power to entertain a matter in the first instance. Matter of T.L.G., 214 Mont. 164 , 692 P.2d 1227 (Mont. 1984).
The question certified to this court is in essence whether this court’s decision in Lake View School District No. 25 v. Huckahee, 351 Ark. 31 , 91 S.W. 3d 472 (2002) (Lake View III), and recent actions of the legislative and executive branches have altered the status of Arkansas school districts with respect to sovereign immunity and the Eleventh Amendment. There is currently pending before this court a petition to reinvest jurisdiction in this court to examine whether the legislative and executive branches have set up a constitutional system of public schools through decisions made and legislative acts passed since our decision in Lake View III. A number of acts were passed by the General Assembly in the 2005 legislative sessions, and we have no idea of what if any changes these acts may make in the status of school districts, either explicitly or covertly. The statement in the per curiam that “Lake View III and its aftermath did not change the fundamental structure for administering the delivery of public education in this State,” is sweeping. We must be careful about passing judgment on the impact of legislation that has not been implemented. Further, we cannot pass judgment when we are relying on precedent that may soon change if the mandate is recalled.
In order to carry out our duty under Ark. Sup. Ct. R. 6-8 in any meaningful way, the facts must be undisputed. We do not have undisputed facts in this case.
I also must express my concern that we are making a very broad decision. We may regret the blunt sweeping language of this opinion declaring that public school districts may never be an arm of the State when different facts might one day be presented that show a school district is acting as an arm of the State, and on that basis should be entitled to the State’s sovereign immunity. The answer that should be provided to the federal district court is that Dermott, supra, remains the current law.