Sovereign Immunity Update: Tupac, gas wells, and dicamba make an appearance in recent cases

By Adrienne Griffis

As it turns out, even celebrities aren’t immune to the effects of sovereign immunity. A recent sovereign immunity case involves Tupac Shakur’s former bodyguard, Kevin Hackie. Hackie was also an FBI informant who testified in the civil wrongful death trial resulting from the murder of Notorious B.I.G. Hackie’s newest claim to fame, however, is as the plaintiff in the most recent sovereign immunity case decided by Judge Tim Fox, who presides over the Sixth Division of the Pulaski County Circuit Court. The case, Hackie v. Bryant, 60CV-17-7559, involves the Arkansas State Police’s denial of Hackie’s application for a license to operate a security and investigations company. In an order entered last week, Judge Fox held that sovereign immunity barred Hackie’s lawsuit against the State Police; however, the State Police’s decision denying Hackie a license was void because his lawsuit against the State Police was barred by sovereign immunity.

This ruling may seem circular at first, but the logic behind it makes sense. Prior to the Supreme Court’s decision in Board of Trustees v. Andrews, 2018 Ark. 12,[1] in January, the Arkansas Administrative Procedures Act (APA) allowed us to appeal the decisions of state agencies, such as the State Police, by filing a lawsuit against the state in circuit court. However, the Andrews case held that statutory provisions allowing parties to sue the state, such as those found in the APA, are unconstitutional. Accordingly, the state can prevent Arkansans from seeking judicial review of the decisions of state agencies through an appeal by asserting that sovereign immunity bars the lawsuit. As Judge Fox’s order suggests, an application of sovereign immunity which results in the lack of any appellate rights is tantamount to a denial of procedural and substantive due process. And a decision made without the guarantees of due process should not be allowed to stand.

The Hackie case is only the most recent in a line of cases Judge Fox has decided similarly. In February, Judge Fox considered the application of sovereign immunity in Hurd, et al. v. Arkansas Oil and Gas Commission, et al., 60CV‑17‑3961. In this case, the plaintiffs sought judicial review of an Arkansas Oil & Gas Commission decision that prevented them from enforcing royalty rights related to gas well drilling on their property. The Oil & Gas Commission argued that sovereign immunity prevented any appeal of its decision and, accordingly, Judge Fox dismissed the case. However, Judge Fox also ruled that certain provisions of the APA are unconstitutional because they deny litigants procedural and substantive due process by failing to provide a right of review for state agency decisions. Due to the unconstitutionality of the APA, the Oil & Gas Commission’s decision was null and void.

Earlier this month, Judge Fox made another similar decision in McCarty, et al. v. Arkansas State Plant Board, et al., 60-CV-17-6539. In this case, six farmers attempted to appeal an Arkansas State Plant Board rule banning certain usage of dicamba after April 15, 2018. Judge Fox dismissed their appeal to circuit court based on the Plant Board’s sovereign immunity. Judge Fox further ruled that the Plant Board’s rule prohibiting dicamba use was null and void due to the APA’s failure to provide an opportunity for review of the Plant Board’s decision, which violates the plaintiffs’ procedural and substantive due process rights. However, because the case was not a class action, the Court held that the Plant Board’s rule was only null and void as applied to those six farmers who had attempted to appeal the Plant Board’s decision—meaning that these six farmers were relieved from the dicamba ban, while all other farmers were still subject to the Plant Board’s rule.   

The cases against both the Oil & Gas Commission and the Plant Board have been appealed to the Arkansas Supreme Court, where a stay on the Judge Fox’s rulings has been granted in each case. We do not know yet whether Hackie or the State Police will appeal the most recent order. One of the primary contentions by the state agency appellants is that sovereign immunity prevented the court from taking any action in these cases, including ruling on the constitutionality of the APA. Until this issue is decided by the Supreme Court, we can expect to continue to see similar rulings in sovereign immunity cases. Stay tuned…

 

[1] See my January 18 blog post for more information about the Andrews case.

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