Pay case again raises state immunity issue; justices mulling over absoluteness

Two former state employees' yearslong legal battle for back wages led to the Arkansas Supreme Court justices again pondering Thursday the question of when the state can make itself immune from lawsuits.

Oral arguments were held Thursday in the case, Arkansas Department of Veterans Affairs v. Diane Mallett & Joseph Fabits, a wage dispute similar to the case that earlier this year ended with justices ruling that the Legislature cannot write laws that make state agencies subject to lawsuits for money damages -- in effect striking down portions of the Arkansas Minimum Wage Act.

In that earlier case, The Board of Trustees of the University of Arkansas v. Matthew Andrews, a majority of the court took a strict approach in interpreting sovereign immunity -- a doctrine protecting the state against lawsuits -- and overturned two decades of court precedent.

But several of the same justices who joined the court's Andrews decision seemed skeptical Thursday about the absolute nature of the state's immunity.

"What keeps Article 5 Section 20 [of the Arkansas Constitution] from turning Arkansas into a totalitarian state like North Korea?" asked Chief Justice Dan Kemp, who wrote the majority opinion in Andrews.

The section of the Arkansas Constitution of 1874 that Kemp was referring to says the state "shall never be made defendant in any of her courts." Writing in January, Kemp said the court interprets that phrase "precisely as it reads."

Mallett and Fabits, both former employees at the state Veterans Home at Fayetteville, say they were not paid for lunch hours they worked through or for overtime. Like the plaintiff in Andrews -- a bookstore clerk at a state community college -- they are seeking back pay for their work.

While the court has ruled that wage lawsuits against the state are not permitted by the constitution, attorneys for Mallett and Fabits said their case is distinct from Andrews because state attorneys had at first told a lower court judge that they would not seek to dismiss the case as an illegal lawsuit. Therefore state attorneys, not the Legislature, waived sovereign immunity, the workers argue.

Jennifer Merritt, the lawyer for the attorney general's office, said state attorneys have the right to raise sovereign immunity as a defense at any time during litigation.

But that assertion prompted Justice Rhonda Wood, another member of the court who joined the majority in Andrews, to picture a "white flag of sovereign immunity" that state attorneys could raise when they want to dismiss a case against the government.

"That's what the language of the constitution requires," Merritt said. "It is an absolute immunity."

At another point in Merritt's arguments, Justice Josephine Hart pushed back when the attorney said her colleagues at the attorney general's office changed their approach after realizing that sovereign immunity was a "good argument." Hart has joined several forceful dissents against the court's recent decisions to uphold sovereign immunity.

"A good argument for whom?" Hart inquired. "The attorney general thought that was a good argument to use against workers in a nursing home?"

Merritt pointed out that the court's majority has determined that the state Claims Commission, a quasi-judicial body established by the Legislature, is the appropriate venue for monetary claims against the state.

Another member of the court's five-member majority on the Andrews decision, Justice Shawn Womack, pressed on that point, asking the workers' attorney, Timothy Steadman, why they didn't simply take their case to the Claims Commission.

Steadman said that would be "starting over" after more than four years of litigation and noted that the Claims Commission does not fully follow the judiciary's rules of evidence and procedure.

Still, he seemed to take note that most of the justices' pointed questions had been aimed at his courtroom opponent.

"I did not get nearly as many questions as the state's attorney," joked Steadman as his time wound down.

The justices are expected to break for summer recess at the end of next month. It is likely they will hand down their decision in the case before then.

Metro on 05/11/2018

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