Citing sovereign immunity, Arkansas AG calls on court to dismiss LEARNS Act lawsuit

Plaintiffs argue sovereign immunity is not applicable to the case
Arkansas Attorney General Tim Griffin, left, gestures during a news conference at the Arkansas Capitol. He and Gov. Sarah Huckabee Sanders, at right, discussed proposed legislation to address parole, jail overcrowding and other criminal justice issues. (John Sykes/Arkansas Advocate)

Arkansas Attorney General Tim Griffin is calling on the state Supreme Court to dismiss a case that seeks to delay the implementation of the LEARNS Act, the governor’s signature education law.

In a 47-page brief filed Tuesday, Griffin argued that because plaintiffs can’t show the state acted unlawfully, their claims are barred by sovereign immunity, a legal doctrine that prevents most lawsuits against the state. 

Griffin also said the case presents a political question courts may not decide, and it should be dismissed because it violates separation of powers.

The Arkansas Supreme Court ordered the brief on Friday when justices denied Griffin’s motion to lift a temporary restraining order that blocks implementation of the LEARNS Act, while granting a motion for expedited consideration.

Justices ordered the parties to file simultaneous briefs by 9 a.m. Tuesday that address whether sovereign immunity doctrine bars the lawsuit and whether the case presents a “nonjusticiable political question that violates the separation of powers.”

At the heart of the case is whether the Legislature properly adopted an emergency clause to allow the LEARNS Act to take effect immediately. This would affect whether a small Delta school district can finalize a “transformation contract” with a charter management company. 

The LEARNS Act provides such contracts to allow academically struggling schools to partner with a third party in lieu of a state takeover. The State Board of Education approved such a contract between the Marvell-Elaine School District and the Friendship Education Foundation in May as an alternative to consolidating the district. 

But residents and teachers from the district filed a lawsuit last month arguing that the state board didn’t have the authority to approve the contract due to a defective emergency clause in the LEARNS Act, meaning the law is not yet in effect. 

An emergency clause allows new laws to take effect immediately instead of 91 days after the Legislature adjourns. The lawsuit contends the LEARNS Act’s emergency clause wasn’t passed by a separate roll-call vote garnering a two-thirds majority, as required by the state Constitution.

The plaintiffs also argued the Legislature failed to establish that an emergency existed making immediate implementation of the law necessary. 

If the High Court accepts the argument about flawed emergency clause adoption, it would have wide implications for hundreds of other laws enacted earlier this year with emergency clauses attached.

Instead of playing “legislative referee,” Griffin said in Tuesday’s brief, the high court should reject plaintiffs’ attempt to undermine and overrule what has been a long-accepted practice of voting on a law and its emergency clause jointly, but recording it separately in the House and Senate journals.

“On separation-of-powers grounds, it should hold that Plaintiffs’ challenge presents a political dispute committed to the sound discretion of a co-equal branch and dismiss the case,” he said. 

In the plaintiffs’ simultaneous filing Tuesday, Little Rock lawyer Ali Noland argued the Arkansas Supreme Court can’t decide this case based on sovereign immunity because sovereign immunity is not a jurisdictional issue and the appellants failed to obtain a ruling from the circuit court on their sovereign-immunity defense. 

Additionally, Noland said the state isn’t entitled to sovereign immunity because her clients’ lawsuit is covered by “several well-established exceptions,” including that their amended complaint states a claim for illegal exaction, and sovereign immunity is not a defense to an illegal-exaction suit.

Sovereign immunity is also inapplicable in a lawsuit seeking injunctive relief and alleging that the government acted illegally, she said.

Noland disagreed with Griffin’s assertion that the lawsuit presents a political question. Instead, she argued it presents a justiciable legal issue because the U.S. Supreme Court has previously ruled that a suit raising a “political” issue does not mean it presents a political question. 

This isn’t a case where the court risks making policy with its ruling, Noland wrote. Her clients simply asked the Pulaski County Circuit Court to say what the law is by providing “clarity and guidance as to whether the LEARNS Act is currently law,” she said.

It’s the judicial branch’s job to interpret the Arkansas Constitution and determine the constitutionality of state laws, not the job of the executive or legislative branches, Noland said.

“Dismissing the present case [as] a nonjusticiable political question would be a very dangerous path to take, and the Appellees strongly caution the Court against creating a precedent that would essentially block the Arkansas judiciary from ever deciding the constitutionality of a piece of legislation,” Noland wrote. 

As part of the expedited review process, simultaneous response briefs must be filed by 9 a.m. Wednesday.

This story first appeared in Arkansas Advocate and is being republished through a Creative Commons License. See the original story here.

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