Why did Arkansas reject the 2018 ballot title authorizing the General Assembly to waive state sovereign immunity?

Plain-English summary

The Committee to Restore Arkansan's Rights, through legal counsel Alex T. Gray, submitted a proposed constitutional amendment to Article V, Section 20 that would have authorized the General Assembly to waive the State's sovereign immunity. The popular name and ballot title both used the term "sovereign immunity" without explanation.

The AG accepted the popular name as sufficient (popular names need not contain detailed information; they primarily serve as a label for voter discussion). But the AG rejected the ballot title because "sovereign immunity" is a legal term of art most voters would not recognize. Without an explanation that the doctrine means the state cannot be sued in its own courts, and that authorizing waiver means giving the legislature the ability to enact statutes letting people sue the State for money damages and other relief, voters could not make a "reasoned decision in the voting booth" under Lange v. Martin.

This was a companion opinion to Op. Att'y Gen. 2018-020 (rejecting a more elaborate sovereign-immunity proposal from the same sponsor), both responding to the policy questions raised by the Arkansas Supreme Court's January 2018 decision in Board of Trustees of the University of Arkansas v. Andrews, 2018 Ark. 12.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The 2018 sovereign-immunity ferment in Arkansas centered on Board of Trustees of the University of Arkansas v. Andrews, 2018 Ark. 12, 535 S.W.3d 616 (Jan. 2018), which read Article V, Section 20 to bar even General-Assembly-authorized suits against the State, sharply contracting earlier doctrine. Multiple proposed constitutional amendments tried to restore legislative authority to waive sovereign immunity. Verify the current state of Arkansas sovereign-immunity doctrine before relying on any aspect of this opinion.

What the AG said about technical legal terms in ballot titles

The opinion is unusually focused. It accepted the popular name as a sufficient label, then turned to a single defect in the ballot title: the term "sovereign immunity." The AG cited Wilson v. Martin, 2016 Ark. 334, 500 S.W.3d 160 (2016): "Without a definition of this [technical] term, the voter would be in the position of guessing as to the effect his or her vote would have unless he or she is an expert in the legal field."

The AG identified two specific things the ballot title needed to convey:

1. "Sovereign immunity" means the state cannot be sued in its own courts.
2. "Authorizing the General Assembly to waive sovereign immunity" means giving the legislature the ability to enact statutes that allow people and entities to sue the State in state court for money damages and other forms of relief.

Both were necessary because the proposal would have substantively changed the constitutional text by inserting an exception ("unless authorized by the General Assembly") into the existing Article V, Section 20 prohibition.

Common questions

What is sovereign immunity?
A common-law and constitutional doctrine that prevents states from being sued without their consent. In Arkansas, Article V, Section 20 provides: "The State of Arkansas shall never be made defendant in any of her courts."

What was the Andrews case?
Board of Trustees of the University of Arkansas v. Andrews, 2018 Ark. 12, decided in January 2018, just before this opinion. The Arkansas Supreme Court read Article V, Section 20 strictly to bar even legislatively authorized suits against the State, contracting prior doctrine. That decision triggered a wave of proposed amendments seeking to restore legislative waiver authority.

Why did the AG accept the popular name but reject the ballot title?
Popular names need not contain detailed information; they primarily function as a label voters can use to identify the measure for discussion. Ballot titles must give voters a fair understanding of the substantive content. Technical terms in popular names are tolerable; in ballot titles they often are not.

What's the rule about technical legal terms?
Wilson v. Martin (and the Court's broader doctrine) treats undefined technical terms as a defect because voters cannot make an informed choice. The fix is to add a brief explanation, not to omit the term.

Did this rejection block the amendment from the ballot?
This particular submission was rejected. The sponsor could revise and resubmit. The 2018 ballot did include a separate sovereign-immunity-related measure (Issue 1), which itself had a complicated history.

Background and statutory framework

Ark. Code Ann. § 7-9-107 implements Amendment 7 / Article 5, Section 1 of the Arkansas Constitution. The AG's three options are certify, substitute and certify, or reject. The Court's standards: ballot titles must be "free of any misleading tendency" and must "adequately inform" voters; technical terms need definitions; essential facts that would give voters "serious ground for reflection" must be disclosed.

The AG's decision here is methodologically narrow: one defect, cleanly stated, with a short fix the sponsor can implement. Compare this to the more sprawling rejections of casino and redistricting amendments issued the same week, which identified multiple ambiguities each requiring substantive proposal-text changes.

Citations

• Ark. Code Ann. § 7-9-107 (Supp. 2017)
• Ark. Code Ann. § 7-5-309 (five-minute voting-booth limit)
• Ark. Const., art. 5, § 20 (sovereign-immunity bar)
• Wilson v. Martin, 2016 Ark. 334, 500 S.W.3d 160 (2016) (technical-terms doctrine)
• Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154 (adequately-inform standard)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (materiality)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980) (fair-understanding)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2018-006
February 6, 2018
Alex T. Gray, Legal Counsel
Committee to Restore Arkansan's Rights
c/o Steel, Wright, Gray & Hutchinson
400 West Capitol Avenue, Suite 2910
Little Rock, AR 72201

Dear Mr. Gray:

I am responding to your request for certification of the popular name and ballot title for a proposed initiated measure.

At the outset, I wish to make clear that the decision to certify or reject a popular name and ballot title in no way reflects my view of the merits of the measure. I am not authorized to, nor do I, consider the merits of a measure when weighing whether to certify or reject.

REQUEST

You have requested certification, pursuant to Ark. Code Ann. § 7-9-107, of the following popular name and ballot title for a proposed constitutional amendment:

Popular Name

An Amendment to Authorize the General Assembly to Waive The State's Sovereign Immunity

Ballot Title

An amendment to Article V, Section 20 of the Arkansas Constitution authorizing the General Assembly to waive the State's sovereign immunity.

[Additional context on the proposal: the proposed amendment to Article V, Section 20 would have read: "The State of Arkansas shall never be made defendant in any of her courts, unless authorized by the General Assembly."]

RESPONSE

It is my opinion, based on the above guidelines, that the popular name you submitted is sufficient as proposed. However, the ballot title has a deficiency requiring that I reject it. I believe most voters will be unfamiliar with the term "sovereign immunity" as it appears in the ballot title, because it is a legal term of art. Most voters will not know that the doctrine of sovereign immunity means that a state cannot be sued in its own courts. Likewise, most voters will not appreciate that authorizing the General Assembly to waive sovereign immunity means giving the legislature the ability to enact statutes that allow people and entities to sue the State in state court for money damages and other forms of relief. Given the content of your ballot title as proposed, both of these concepts, sovereign immunity and waiver of sovereign immunity, need to be briefly explained to ensure voters are "adequately inform[ed]" and can make a "reasoned decision in the voting booth."

CONCLUSION

My office, in the certification of ballot titles and popular names, does not address the merits, philosophy, or ideology of proposed measures. I have no constitutional role in the shaping or drafting of such measures. My statutory mandate is embodied only in Ark. Code Ann. § 7-9-107, and my duty is to the electorate.

Based on what has been submitted, my statutory duty is to reject your proposed ballot title. The ambiguities noted above are not necessarily all the ambiguities contained in your proposal, but they are sufficiently serious that I am unable to certify your ballot title at this time.

Sincerely,

LESLIE RUTLEDGE
Attorney General

Enclosure