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Analysis: Questions remain about Arkansas immunity ruling

By The Associated Press
This article was published February 25, 2018 at 6:00 a.m.

LITTLE ROCK (AP) — A judge's decision to toss out a lawsuit challenging the ban of a controversial herbicide is putting even more of a spotlight on an Arkansas Supreme Court decision that's created confusion about whether the state can ever be sued.

At this point, it'll probably take follow-up decisions from the court or a new amendment to Arkansas' constitution to clear the matter up.

Pulaski County Circuit Judge Chris Piazza this month dismissed agribusiness Monsanto's lawsuit challenging the state Plant Board's decision to ban the use of dicamba from April 16 through Oct. 31. With the ruling, he became the latest judge to say the Arkansas Supreme Court has given the state blanket protections from a host of legal challenges.

"It's obvious that Arkansas is going to have to come up with a constitutional amendment to change this to make it where we can operate again as a court should," Piazza said. "I really think the (state Supreme Court case) prevents us from hearing this case at this moment."

Piazza cited the Supreme Court's ruling last month that the Legislature can't waive the state's immunity from lawsuits. The court had ruled against a former bookstore manager at a community college in Mena who sued the school for failing to pay him for working overtime.

At issue is a provision in Arkansas' constitution that says the state shall never be made a defendant in its courts, language the high court said can't be overridden by the Legislature. The two justices who dissented from last month's ruling said it could affect a wide range of cases, including Freedom of Information Act challenges and whistleblower lawsuits.

"The majority's opinion transforms the state to king-like status and makes 'the king can do no wrong' theory absolute," Justice Karen Baker wrote in the dissenting opinion.

Baker's dissent also warned the court's ruling could create "complete disarray" on Arkansas' sovereign immunity, a prediction that may already be a reality.

Within days of the high court's ruling, Pulaski County Circuit Judge Tim Fox tossed out an appeal of an Oil and Gas Commission ruling regarding royalties challenged in court by some Cleburne County property owners. Piazza cited Fox's decision as he dismissed Monsanto's lawsuit.

The sovereign immunity case has even been cited by attorneys for the justices in their response to a lawsuit by Pulaski County Circuit Judge Wendell Griffen over the state Supreme Court barring him from hearing execution-related cases following his participation in an anti-death penalty demonstration.

The issue could also come up this week, when the state issues its first licenses for facilities to grow and cultivate medical marijuana. Lawsuits from businesses that don't obtain licenses could meet the same fate as other cases in the wake of the sovereign immunity ruling.

The proposal has prompted an effort to put a measure on the ballot that would give citizens a way to take the state to court. The proposal would restore the state Legislature's ability to waive sovereign immunity.

Gov. Asa Hutchinson has said he believes the court only intended its ruling to affect lawsuits where someone is seeking monetary damages, something that would allow someone to still seek relief through the state's Claims Commission. But the Republican governor said he's told his agency directors to not assert sovereign immunity on cases not involving monetary damages without consulting his office first.

"I want to make sure there's a uniform approach and make sure we're not going to be asserting sovereign immunity in cases of Freedom of Information law and things that the citizens have to access to the courts for," Hutchinson said.

Lawmakers, meanwhile, have said they're also hoping for some clarity.

"Until the ruling is clarified ... we're going to be in a period where no one is exactly sure what the law is," state Sen. Will Bond said last month. "Usually, that's not good for the citizenry, meaning they have to expend more resources and battle through the system to get a fair day in court."

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