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OPINION | JOSHUA M. SILVERSTEIN: Time to eliminate sovereign immunity

by JOSHUA M. SILVERSTEIN SPECIAL TO THE DEMOCRAT-GAZETTE | April 19, 2021 at 1:00 a.m.

Arkansas Senator and chair of the Senate Judiciary Committee Alan Clark (R-Lonsdale) recently introduced Senate Joint Resolution 3 at the state Legislature. SJR3 would amend the Arkansas Constitution to eliminate the sovereign immunity of the state of Arkansas. This would permit any person to sue the state in court in the same circumstances as any other type of defendant, such as a person or corporation.

Sovereign immunity is a holdover from the era when most countries were monarchies. The legal basis for sovereign immunity was as follows: Because the monarch created the courts, the monarch is superior to the courts. And thus the monarch is not subject to the jurisdiction of the courts.

But the United States is not a monarchy. Nor are any of the individual states, including Arkansas. The courts in this country do not owe their existence to a king, the legislature, or the executive. Instead, the courts are a co-equal branch of government created by our federal and state constitutions. This means that the historical basis for sovereign immunity no longer exists.

Moreover, there are no persuasive modern policy justifications for sovereign immunity. In fact, sovereign immunity is fundamentally incompatible with the rule of law, due process of law, and the concept of a bill of rights.

Contemporary societies use litigation to resolve disputes and vindicate legal rights. If someone causes you an injury or breaches one of your contracts, you may sue that person in court to recover your damages.

Likewise, if a corporation, a partnership, or some other type of entity injures you or breaches a contract, you may sue that entity in court to recover your damages.

But if the state of Arkansas or some division of the state, such as a commission or university, injures you or breaches a contract, you cannot sue in court to recover your damages. Instead, you must assert your claim before the Arkansas Claims Commission--which is an administrative agency rather than a court--and then before the state Legislature.

There is a fundamental principle of American law that provides that no person should be a judge in his or her own case. But that is exactly what happens when a person sues the state of Arkansas for money under current law: The Legislature itself ultimately decides if the injured person is entitled to monetary relief from the state.

That is inconsistent with the notion of due process that underlies our justice system. Sovereign immunity thus makes it far harder for citizens to enforce their fundamental legal rights, such as freedom of speech, freedom of religion, and the right to keep and bear arms.

To make this analysis more concrete, suppose an Arkansas citizen enters into contracts with both the state of Arkansas and the nation of Germany for business services in Little Rock. Suppose further that Arkansas and Germany both default on their contractual obligations.

The citizen is legally entitled to sue Germany in Arkansas state court. But to challenge the breach committed by Arkansas, the citizen would have to resort to the Arkansas Claims Commission. In other words, current law makes it easier for a citizen of this state to recover damages from a foreign country than to recover from the state of Arkansas itself. That is strikingly illogical.

Sovereign immunity has no place in a modern constitutional democracy like the United States or Arkansas. In fact, the United Kingdom, the source of the American doctrine of sovereign immunity, eliminated such immunity in 1947. And a number of other American states have also abrogated sovereign immunity, in whole or in part.

There are two major objections to SJR3. The first is that removing sovereign immunity will increase litigation. But that's a feature, not a bug.

As noted above, litigation is how we peacefully resolve disputes. And litigation is perhaps the most important mechanism for protecting legal rights; it is one of the primary ways the people keep the government in check.

The alternative to litigation is that rights can be violated with impunity. There should be more litigation seeking damages against the state in our courts, because currently there is none.

The second argument against eliminating sovereign immunity is that it will hold the citizens of this state financially responsible for the wrongdoing of their government. But once again, that's a feature, not a bug.

In a constitutional democracy, government officials represent and work for the people. And such officials are chosen by the citizenry. This means that all public employees are agents of the people of this state.

Another fundamental principle of American law is that if an agent commits a wrong, the principal is legally responsible for the resulting harm. For example, if a corporate officer commits a tort, the damages paid come out of business property that would otherwise belong to the shareholders.

SJR3 extends this concept to wrongdoing committed by government officials. If a state employee injures a person or breaches a contract on behalf of the state, rectifying that wrong should come out of the taxes that every Arkansan pays.

Think about it this way: The people vest the state with its power and authority. Therefore, when the state makes a mistake, the people collectively are morally responsible for compensating the injured party.

Holding all of us responsible for official malfeasance has an added benefit: It gives every citizen an incentive to more carefully monitor our government. And if we see too much litigation resulting from misbehavior by public employees, we can vote to install new elected leaders who will change the way government operates.

In fact, eliminating sovereign immunity will almost certainly save Arkansans money, because the threat of litigation will greatly decrease wrongdoing by the state--wrongdoing that causes significant financial harm to both the immediate victims and society at large.

Litigation is the primary tool for enforcing legal rights. The state sometimes violates legal rights just like people and businesses do. Thus, litigation should be fully available to challenge state misconduct, just as it is available to challenge private misconduct.

Whether you are conservative, liberal, or somewhere in between, you believe in government accountability. Removing sovereign immunity from the state constitution will help to bring about greater accountability using the best tool ever created to enforce legal rights--independent courts.

Please contact your representative and senator and urge them to vote in favor of SJR3. Let's finally eliminate sovereign immunity, an anachronistic remnant of a world that no longer exists.

Joshua M. Silverstein is a law professor who lives and works in Little Rock.

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