# ACW, INC. v. Weiss

> Supreme Court of Arkansas · June 30, 1997 · 329 Ark. 302

URL: https://www.frixlaw.com/law-library/cases/9769773

## Case

- **Full name:** ACW, INC.; Phillips Development Corporation; And United Wholesale Florists, Inc., on Behalf of Themselves and All Others Similarly Situated v. Richard WEISS, Director of Department of Finance & Administration, and John Theis
- **Court:** Supreme Court of Arkansas
- **Decided:** June 30, 1997
- **Citations:** 329 Ark. 302; 947 S.W.2d 770; 1997 Ark. LEXIS 413
- **Precedential status:** Published
- **Opinion:** Concurring in part by Brown
- **Judges:** Thornton, Newbern, Glaze, Brown
- **Cited by:** 70 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9769773

## How later opinions describe it (automated extraction)

- noting that in light of the enactment of a refund statute, the voluntary-payment rule "is of no consequence"
- discussing Ark. Const. art. 5, § 38, which was added to the constitution by Ark. Const. amend. 19

## Opinion text

Robert L. Brown, Justice, concurring in part and dissenting in part. I agree with the majority’s opinion on direct appeal, but I would affirm the cross-appeal.
The court’s decision with respect to the cross-appeal gives the plaintiffs in this case a hollow victory and repeats the mistake that was made in the substituted opinion in State v. Staton, 325 Ark. 341 , 942 S.W.2d 804 (1996). My dissent in that case foretold that this precedent would work to deny taxpayers who had been assessed an illegal tax the only viable remedy to reclaim those taxes. As an example, it is estimated in this case that individual corporations have $1,060 at risk in this litigation. It would be cost-prohibitive for a corporation to take on the expense of filing the administrative claim, and then upon denial of that claim, to pursue relief through the trial court and on appeal. The bottom fine is that the State has every motivation to take the most aggressive stance on a given tax statute, for it is now a virtual certainty that even the most extreme interpretation will reap the bounty of illegal tax revenue.
Our decision in Staton hinged on the notion that sovereign immunity protects the State from the consequences of its illegal actions and also on the porous premise that class actions will bankrupt the State. As I stated in my dissent in Staton, sovereign immunity was sufficiently waived by the General Assembly by its enactment of Ark. Code Ann. § 26-18-507 (Repl. 1992); hence, the voluntary payment rule is of no consequence in light of this refund statute. Moreover, the State will not be pushed toward bankruptcy with these class actions. Individual taxpayers still would have to prove their claims should the tax interpretation be decided in their favor.
A class action is the only practical way to remedy many illegal taxes like the one before the court today, because only the most civic-minded citizen would undertake the arduous burden of obtaining judicial relief when the recovery could only be nominal at best. The death of Pledger v. Bosnick, 306 Ark. 45 , 811 S.W.2d 286 (1991), has left the taxpaying families and companies of this State subject- to the will of the Department of Finance and Administration without a remedy. I would permit the class action to proceed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9769773. Public record. Not legal advice.