Arkansas Supreme Court limits application of state Whistle-Blower Act

Arkansas Supreme Court limits application of state Whistle-Blower Act

[JURIST] The Arkansas Supreme Court [official website] on Thursday ruled [opinion] that the Arkansas Whistle-Blower Act (AWBA) [materials] does not protect a former employee of the Department of Arkansas Community Corrections (ACC) [official website] who alleged she was fired for protesting and participating in an investigation to uncover workplace discrimination.

Annette Barnes, the employee in question, alleged that she was terminated from her position with the ACC for “protesting discriminatory actions on behalf of her employer and participating in an investigation designed to discover further discrimination.” Her firing, she argued, amounted to a violation of the AWBA and she asked for damages, reinstatement, and all other relief available under the AWBA.

In making their decision, the Court relied on an earlier decision[text] it issued in January holding that the state’s legislature could not pass laws waiving the sovereign immunity provision of the state Constitution in civil lawsuits seeking monetary damages. In this most recent opinion, the court stated that because the state legislature cannot waive constitutional sovereign immunity, “the statute that provided for the State to be made a defendant in the [AWBA] was beyond the scope of legislative power as defined by the Arkansas Constitution.” In light of this finding, the court never considered whether the acts of the ACC fell within the scope of the AWBA. Sovereign immunity, the court reasoned, was the only issue that needed to be examined.

The dissent, joined by the same justices that dissented in the January opinion, relied largely on Article 2 and Article 5, section 20 of the state’s Constitution. Article 2 of the state’s Constitution states that:

[e]very person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase; completely, and without denial; promptly and without delay; conformably to the laws.

In their opinion, the court stated that:

Article 2 then sets forth many principles with respect to the rights and freedoms enjoyed by Arkansas citizens and exempts those rights and freedoms from the authority delegated to the state government.

Article 5, section 20, on the other hand, simply states that “[t]he State of Arkansas shall never be made defendant in any of her courts.”

The dissent argued that

[I]t is absolutely ludicrous to suggest that the drafters of the 1874 Constitution, considering the context in which it was drafted, intended to guarantee the rights enumerated in article 2 and to except those rights from interference by the state government, and then simultaneously intended to take away the people’s ability to judicially enforce those rights with article 5, section 20. Article 2 trumps article 5[.]

The dissent concluded its argument by urging the court to over rule the January precedent.