Bear Chaney, in His Official Capacity as Director of the Arkansas Assessment Coordination Division of the State of Arkansas v. Union Producing, LLCessment

2020 Ark. 388, 611 S.W.3d 482

• Court: Supreme Court of Arkansas
• Decided: December 3, 2020
• Status: Published

Opinion

Cite as 2020 Ark. 388 SUPREME COURT OF ARKANSAS No. CV-19-962

Opinion Delivered: December 3, 2020 BEAR CHANEY, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE APPEAL FROM THE OUACHITA ARKANSAS ASSESSMENT COUNTY CIRCUIT COURT COORDINATION DIVISION OF THE [NO. 52CV-17-39] STATE OF ARKANSAS APPELLANT HONORABLE DAVID F. GUTHRIE, JUDGE V.

UNION PRODUCING, LLC; J. DAVID REYNOLDS COMPANY; J. DAVID REYNOLDS III; PANTHER CREEK PROPERTIES, LLC; E&L OIL, LLC; JERRY LANGLEY OIL COMPANY, LLC; JAMES LANGLEY OPERATING COMPANY, INC.; JAMES WALLACE LANGLEY; BERG LANEY & BROWN COMPANY; BERG ROYALTY COMPANY; ARKANSAS PRODUCTION SERVICES, LLC; SMACKOVER RESOURCES, INC.; TOC, LLC; AND DAN REYNOLDS COMPANY REVERSED AND REMANDED IN APPELLEES PART; DISMISSED IN PART.

JOHN DAN KEMP, Chief Justice

Appellant Bear Chaney, in his official capacity as Director of the Arkansas Assessment

Coordination Division (“AACD”) of the State of Arkansas, filed an interlocutory appeal

from the Ouachita County Circuit Court’s order denying his motion for summary

judgment. For reversal, Chaney argues that the circuit court erred as a matter of law in

finding that he was not entitled to sovereign immunity and that the circuit court lacked subject-matter jurisdiction to award injunctive relief against him. We reverse and remand

in part and dismiss in part.

I. Facts

Appellees, the plaintiffs in the underlying case, include Union Producing, LLC; J.

David Reynolds Company; J. David Reynolds III; Panther Creek Properties, LLC; E&L

Oil, LLC; Jerry Langley Oil Company, LLC; James Langley Operating Company, Inc.;

James Wallace Langley; Berg Laney & Brown Company; Berg Royalty Company; Arkansas

Production Services, LLC; Smackover Resources, Inc.; TOC, LLC; and Dan Reynolds

Company. They own certain interests in mineral properties (“working interests”) located in

Ouachita County.

Chaney is the director of the AACD, which is responsible for the statewide

supervision and coordination of the assessment of real property made by county tax assessors

for ad valorem tax purposes.1 Each year, the AACD issues its “Guidelines for Mass Appraisals

of Minerals” (“AACD Guidelines”) to the county tax assessors in Arkansas’s seventy-five

counties. According to the AACD Guidelines, its “[v]alues . . . should be used by all counties

and applied to all producing mineral interests in the county each year.”

Debbie Lambert, Tax Assessor of Ouachita County (“Assessor”), assesses the value

of real property, including appellees’ working interests, and bases her assessments on the

AACD Guidelines. Those assessments are based on a yearly price per barrel of oil

1 The AACD is not a party on appeal. While Chaney has argued on AACD’s behalf at the circuit court level and on appeal, we see no evidence in the record that the AACD has filed an appeal in this matter.

2 (“$Factor”), which the AACD calculates, and the Assessor applies the $Factor in certain

mathematical formulas to calculate the assessed values of appellees’ working interests.

For tax years 2016, 2017, and 2018, appellees disputed the assessed values of their

working interests as determined by the Assessor. Each year, appellees appealed their

working-interest values to the Ouachita County Board of Equalization, which denied their

claims. Appellees appealed the Board’s rulings to the Ouachita County Court, which also

denied their claims. Appellees then appealed the county court’s rulings to the Ouachita

County Circuit Court.

On February 23, 2017, when appellees first appealed to the Ouachita County Circuit

Court, they added claims for injunctive relief against Chaney in his official capacity as the

director of the AACD. They sought to appeal the county court’s order and requested for

relief that the 2016 assessed values of the appellees’ working interests calculated by the

Assessor be “stricken, set aside, and declared void as being erroneous, excessive, arbitrary,

and not representative of the true market value of the working interests.” They alleged that

the AACD should be enjoined from (1) mandating the tax assessors of the state to use the

AACD computer program and the $Factor in valuing mineral property beginning in 2016;

(2) using the three-year rolling average of oil prices as the current market value of oil

properties in the assessment of the working interests; and (3) using or mandating the use of

its computer program and mathematical formula in the valuation of mineral property. They

also sought injunctive relief from the Assessor and claimed that the Assessor failed to reduce

the value of the working interests derived from the AACD formula to a 20 percent value.

They further requested that the AACD be enjoined from defining “newly discovered

3 property” to include an increase in the barrels of production of an existing oil well or oil

lease, pursuant to amendment 79 to the Arkansas Constitution. Appellees made similar

claims relating to their 2017 and 2018 assessments in subsequent appeals to the circuit court.

On May 1, 2017, Chaney responded separately to appellees’ appeal and petition and

stated that the “AACD’s Guidelines are not mandatory, and county assessors are under no

legal duty to follow them.” He asserted that appellees’ claims against the AACD were barred

by the doctrine of sovereign immunity pursuant to article 5, section 20 of the Arkansas

Constitution.

Chaney also moved for summary judgment on December 3, 2018, and argued, inter

alia, that the claims against him were barred because, as Director of the AACD, he had no

authority to direct how the county assesses the taxes pursuant to Arkansas Code Annotated

section 26-26-1101 (Repl. 2020). On January 18, 2019, the circuit court held a hearing on

Chaney’s motion for summary judgment at which time it took the matter under advisement.

During the course of the litigation, Chaney also filed motions to dismiss on sovereign-

immunity grounds, asserting that he was not a proper party to the lawsuit because he had

no legal authority to mandate how taxes are assessed at the county level.

The circuit court entered an order consolidating the three separate tax appeals for

the tax years 2016, 2017, and 2018. Specifically, on the issue of Chaney’s sovereign-

immunity defense, the circuit court entered an order ruling that

[a]n issue of material fact exists as to whether or not the guidelines provided by [Chaney] to the county assessor for the assessment of the value of mineral interests are discretionary or directory. The existence of this fact question in turn creates a fact issue as to whether or not an exception exists to the sovereign immunity claim of [Chaney]. These issues dictate that the motion for Summary Judgment should be denied.

4 Chaney timely filed this interlocutory appeal.

II. Sovereign Immunity

On appeal, Chaney argues that the circuit court erred in denying summary judgment

on the issue of his entitlement to sovereign immunity. He contends that appellees’ efforts

to enjoin the AACD’s lawful issuance of guidelines to assist local tax assessors in assessing

minerals are barred by sovereign immunity. Chaney also claims that the circuit court erred

in finding that a genuine issue of material fact exists concerning whether the AACD

Guidelines are discretionary or directory.

An order denying a motion to dismiss or for summary judgment based on the defense

of sovereign immunity or the immunity of a government official is an appealable order. See

Ark. R. App. P.–Civ. 2(a)(10); City of Little Rock v. Dayong Yang, 2017 Ark. 18, at 4, 509

S.W.3d 632, 634. When the refusal to grant a summary-judgment motion has the effect of

determining that the appellant is not entitled to immunity from suit, an interlocutory appeal

is permitted because the right of immunity from suit is effectively lost if a case goes to trial.

Id., 509 S.W.3d at 634–35. Whether a party is immune from suit is purely a question of law

and is reviewed de novo on appeal. Id., 509 S.W.3d at 635.

The law is well settled on our standard of review in granting summary judgment.

Muccio v. Hunt, 2016 Ark. 178, at 4–5, 490 S.W.3d 310, 312. A circuit court will grant

summary judgment only when it is apparent that no genuine issues of material fact exist

requiring litigation and that the moving party is entitled to judgment as a matter of law. Id.

at 5, 490 S.W.3d at 312. The burden of proof shifts to the opposing party once the moving

party establishes a prima facie entitlement to summary judgment; the opposing party must

5 demonstrate the existence of a material issue of fact. Id., 490 S.W.3d at 312. Whether a

party is immune from suit in a summary-judgment procedure is purely a question of law.

Repking v. Lokey, 2010 Ark. 356, at 5, 377 S.W.3d 211, 216.

The question in this interlocutory appeal is whether Chaney is immune from suit.

The Arkansas Constitution expressly adopts the doctrine of sovereign immunity in article

5, section 20, which provides that “[t]he State of Arkansas shall never be made defendant in

any of her courts.” The sovereign-immunity doctrine bars suit if a judgment for the plaintiff

will operate to control the action of the State or subject it to liability. Bd. of Trs. of Univ. of

Ark. v. Andrews, 2018 Ark. 12, at 5, 535 S.W.3d 616, 619. We have extended the doctrine

of sovereign immunity to include state agencies, and we have recognized that a suit against

a public official in his or her official capacity is essentially a suit against that official’s agency.

Ark. State Med. Bd. v. Byers, 2017 Ark. 213, at 3, 521 S.W.3d 459, 462.

Sovereign immunity may be overcome when the State is the moving party seeking

relief and when the state agency is acting illegally or if a state officer refuses to do a purely

ministerial act required by statute. Ark. Dep’t of Human Servs. v. Harris, 2020 Ark. 30, at 3,

592 S.W.3d 670, 673. We have held that a state agency or officer may be enjoined from

acting arbitrarily, capriciously, in bad faith, or in a wantonly injurious manner. Id., 592

S.W.3d at 673. We have also recognized that a state agency or officer may be enjoined from

pending action that is ultra vires. Id., 592 S.W.3d at 673.

With this precedent in mind, we turn to the present case. Appellees argue that a

factual question exists because Chaney’s conduct falls under a sovereign-immunity

exception. They contend that he acted in an arbitrary, illegal, or ultra vires manner in

6 controlling the assessment of their working interests through his promulgation of the AACD

Guidelines.

Appellees’ position is misplaced. First, it is solely the county tax assessors who have

the authority and duty to assess property, pursuant to Arkansas Code Annotated section 26-

26-1101 (stating “[e]ach year the county assessor shall . . . appraise and assess all real property

situated within the boundaries of the county”). Based on this statutory authority, the

Assessor—not Chaney—is charged with the duty to appraise and assess appellees’ working

interests. Second, this court has stated that methods and criteria set forth in these assessment

manuals are not mandatory; rather, they are guidance tools. See, e.g., Kitchens v. Ark.

Appraisal Serv., 233 Ark. 384, 386, 344 S.W.2d 853, 854. As such, the AACD Guidelines

provide guidance for county tax assessors in calculating their yearly assessments. Because

these AACD Guidelines are discretionary, Chaney did not engage in illegal,

unconstitutional, or ultra vires conduct. He merely acted within his authority as the Director

in issuing the AACD Guidelines to the Assessor and other county tax assessors across this

state. Thus, based on our standard of review, we hold that the circuit court erred as a matter

of law in finding that Chaney is not immune from suit. Accordingly, we reverse the circuit

court’s denial of Chaney’s motion for summary judgment on sovereign-immunity grounds

and remand for entry of an order consistent with this opinion.

III. Jurisdiction

Next, Chaney contends that the circuit court lacked subject-matter jurisdiction to

award injunctive relief against him. He asserts that seeking injunctive relief against the

AACD is not available in a tax-assessment-appeal proceeding.

7 We have stated that we lack appellate jurisdiction to hear on interlocutory appeal any

issue other than whether the circuit court erred in denying summary judgment on the issue

of sovereign immunity. See City of Malvern v. Jenkins, 2013 Ark. 24, at 6, 425 S.W.3d 711,

715. See also Williams v. McCoy, 2018 Ark. 17, at 6, 535 S.W.3d 266, 269 (dismissing

Williams’s appeal on a Freedom of Information Act claim because it was an improper

interlocutory appeal). Because Chaney’s remaining argument is outside the scope of this

interlocutory appeal, we dismiss it for lack of appellate jurisdiction.

Reversed and remanded in part; dismissed in part.

BAKER, J., concurs without opinion.

HART and WYNNE, JJ., dissent.

JOSEPHINE LINKER HART, Justice, dissenting. I dissent. The circuit court was

correct to deny the State’s assertion of sovereign immunity in the case at bar.

I. Legal Background

This is a case about tax assessments of working interests in oil and gas properties

located within Ouachita County, Arkansas. The Arkansas Constitution provides that “(a)ll

real and tangible personal property subject to taxation shall be taxed according to its value,

that value to be ascertained in such manner as the General Assembly shall direct[.]” Ark.

Const. art. 16, § 5. State law then provides that mineral interests are to be “reappraised

annually for ad valorem tax purposes.” Ark. Code Ann. § 26-26-1308(a)(2) (emphasis

added).

The Arkansas Constitution also provides that

[w]henever a countywide reappraisal or reassessment of property subject to ad valorem taxes made in accordance with procedures established by the General

8 Assembly shall result in an increase in the aggregate value of taxable real and personal property in any taxing unit in this State of ten percent (10%) or more over the previous year the rate of city or town, county, school district, and community college district taxes levied against the taxable real and personal property of each such taxing unit shall, upon completion of such reappraisal or reassessment, be adjusted or rolled back, by the governing body of the taxing unit, for the year for which levied[.]

Ark. Const. art. 16, § 14 (emphases added). State law provides that “[t]he county assessor shall

assess all producing mineral interests in the county.” Ark. Code Ann. § 26-26-1110(a)(1)

(emphasis added). In this case, the county assessor would be the “taxing unit” for purposes

of art. 16, § 14. State law also requires county assessors to follow rules and procedures

prescribed by the Arkansas Assessment Coordination Division (AACD). Ark. Code Ann. §

26-26-1905. The same statutory chapter provides that AACD shall annually develop and

publish valuation tables and other data that shall be used by county assessors for assessing

qualifying lands. Ark. Code Ann. § 26-26-407(f)(1). In this case, AACD would be the

“governing body of the taxing unit” for purposes of art. 16, § 14.

II. Procedural History

Plaintiffs-Appellees filed a lawsuit claiming AACD was involved in a scheme to

overtax the owners of working mineral interests in Ouachita County in violation of

Arkansas law and the Arkansas Constitution. Several allegations together form the basis of

Plaintiffs’-Appellees’ claim.

The complaint alleged that AACD issues to county assessors a computer program to

be used when valuing a barrel of oil in the ground, which is then used to establish the market

value of each working interest. Specifically, the complaint identified two separate problems

with AACD’s computer program. First, AACD made modifications to the computer

9 program in 1998 and 2000 resulting in artificially increased per-barrel valuations for low-

level production (“0-2 bbls of oil”), which thereby results in overstated valuations of the

corresponding working interests. Second, AACD’s computer program uses the average

market price of oil in Arkansas in each of the previous three years (a “three-year rolling

average”) to determine the current market price of oil for purposes of valuing the working

interests, when Ark. Code Ann. § 26-26-1308(a)(2) dictates that those interests be reassessed

annually. For example, as of January 1, 2016, the three-year rolling average for the price of

oil in Arkansas was $70.70 per barrel, when the true market price for oil as of that date was

$39 per barrel.

Additionally, Plaintiffs’-Appellees’ lawsuit identified a third problem, not with

AACD’s computer program, but with the “Guidelines for Mass Appraisals of Minerals,

Revised 2016” (the “2016 Guidelines”), which AACD issues to county assessors.

Specifically, the 2016 Guidelines identify the term “Newly Discovered Property,” defining

it as “production over the ADP [average daily production] for the previous year.” Plaintiffs-

Appellees alleged that this definition for Newly Discovered Property is an unconstitutional

attempt by AACD to circumvent the 10 percent limit on year-to-year property tax increases

found in art. 16, § 14 of the Arkansas Constitution.

Bear Chaney, director of AACD, filed a motion to dismiss and a motion for summary

judgment, arguing that sovereign immunity barred Plaintiffs’-Appellees’ claims. Chaney

claimed that county assessors are not legally required to follow AACD valuation guidelines

or to use its computer program. Because neither directive is mandatory, Chaney argued, the

10 exception to sovereign immunity for illegal, unconstitutional, or ultra vires State conduct

was inapplicable.

But despite Chaney’s representations to the contrary, Plaintiffs-Appellees produced

substantial evidence that AACD, under Chaney’s direction, effectively forces county

assessors to comply with the valuation formulas and guidelines from AACD. During her

deposition, Debbie Lambert, the duly elected county assessor for Ouachita County, testified

that she was told during her training with AACD that she had no choice—she had to use

the AACD guidelines in valuing property. Lambert said she was told funds would be

withheld if she did not comply with the guidelines. She also described an occasion where

an AACD representative came to her office, determined that the wrong table had been

plugged into the computer, told her to change it to the AACD formula, and then directed

her not to tell anyone he had been there. This was consistent with the testimony of Jennifer

Chambers, the employee responsible for generating mineral values in Ouachita County—

Chambers always did what AACD told her (lest AACD “come and write us up”), and

AACD has never told her that she could use a different formula for valuing the oil and gas

properties. Similarly, Margaret Pace, another employee in the Ouachita County Assessor’s

Office, explained that the county assessor has no means to determine the value of the

working interests in oil properties other than what is provided by AACD:

Jennifer is the person who is primarily responsible for entering the data and coming up with the value of the oil properties. She gets her numbers from the [AACD] manual or guidelines. She enters those into the computer and miraculously a value comes up. It is fair to say that except for the guidelines, we don’t know what the value of the minerals are. We have no way to prove the market value. ….

11 I know that [AACD] has a huge spreadsheet that they get their information from. That’s all I know about it. As far as how they came up with these numbers, I don’t know. Our job is to plug in the numbers, hit a button and that’s how we come up with the assessed value. Furthermore, Lindsey Nutt, who works for a company that contracts with various counties

to provide real estate appraisals, testified that AACD can withhold funding from county

assessors when they do not follow AACD guidelines for valuation of oil and gas minerals

and that she was aware AACD has done so on at least two occasions. “The idle threat, so

to speak, is real,” she testified, adding that “[A]ACD is actually assessing or valuing the oil

properties, not Ouachita County.”

Based upon these factual circumstances, the circuit court concluded that Chaney’s

assertion of sovereign immunity did not bar Plaintiffs’-Appellees’ claims at that stage of the

lawsuit. The circuit court’s order provided in relevant part as follows:

An issue of material fact exists as to whether or not the guidelines provided by Defendant to the county assessor for the assessment of the value of mineral interests are discretionary or directory. The existence of this fact question in turn creates a fact issue as to whether or not an exception exists to the sovereign immunity claim of the Defendant.

It is from this decision that Chaney appeals to this court, arguing that Plaintiffs’-Appellees’

claims should be barred pursuant to sovereign immunity.

III. Sovereign Immunity

Article 5, § 20 of the Arkansas Constitution provides that “[t]he State of Arkansas

shall never be made defendant in any of her courts.” While I disagree with this court’s

definition, many opinions of this court assess article 5, § 20 in terms of “sovereign

immunity.” See, e.g., Mitchem v. Hobbs, 2014 Ark. 233, at 3–4; Ark. Dep’t of Cmty. Corr. v.

City of Pine Bluff, 2013 Ark. 36, at 4, 425 S.W.3d 731, 734; Bd. of Trs. of Univ. of Ark. v.

12 Burcham, 2014 Ark. 61, at 3–4. Traditionally, there were three exceptions to the sovereign-

immunity doctrine in Arkansas: (1) when the State is the moving party seeking specific

relief, (2) when a plaintiff seeks to enjoin a state official from acting unlawfully, and (3)

when an act of the legislature has created a waiver of immunity. Id.

Then, in January 2018, this court handed down its decision in Board of Trustees of

University of Arkansas v. Andrews, 2018 Ark. 12, 535 S.W.3d 616. In Andrews, the majority

held that the third of the three aforementioned sovereign-immunity exceptions (legislative

waiver) violated art. 5, § 20 of the Arkansas Constitution:

[W]e conclude that the legislative waiver of sovereign immunity ... is repugnant to article 5, section 20 of the Arkansas Constitution. In reaching this conclusion, we interpret the constitutional provision, “The State of Arkansas shall never be made a defendant in any of her courts,” precisely as it reads.

Andrews, 2018 Ark. 12, at 10, 535 S.W.3d at 622. I have expressed my disagreement with

the Andrews decision on numerous occasions. See, e.g., Milligan v. Singer, 2019 Ark. 177, at

8–9, 574 S.W.3d 653, 658–59 (“Effectively, a majority of this court held that the State of

Arkansas does not have to pay its employees minimum wage, or at least that no court can

make the State pay its employees their wages when it has declined to do so. As one circuit

judge put it shortly thereafter, this was a ‘sea change’ that significantly abridged the then-

acknowledged exceptions to sovereign immunity[.]”).

Thankfully, later decisions of this court seemed to confirm that the second of the

aforementioned exceptions to the sovereign immunity doctrine—the exception for bad-

faith, unconstitutional, or ultra vires State conduct—remained intact. In Monsanto Co. v.

Arkansas State Plant Board, this court held:

13 [T]he sovereign immunity defense is not available against claims of ultra vires conduct that only seek declaratory or injunctive relief. … In short, the ultra vires exception is alive and well.

2019 Ark. 194, at 9, 576 S.W.3d 8, 13. At least nominally, then, Arkansas citizens still have

the ability to go to court and put a stop to bad-faith, unconstitutional, or ultra vires State

conduct.

But now, in this case and in another case handed down by our court today, see

Arkansas Development Finance Authority v. Wiley, 2020 Ark. ___, ___ S.W.3d ___, I am

noticing a troubling trend. In both cases, the plaintiffs sued a state agency and other parties,

alleging the defendants harmed the plaintiffs by administering the state agency’s program in

a way that violated the plaintiffs’ rights. In both cases, the state agency asserted that the

plaintiffs’ claims must be dismissed on the basis of sovereign immunity. In both cases, the

plaintiffs argued that their claims were premised upon bad-faith, unconstitutional, or ultra

vires State conduct, which supplies the exception to sovereign immunity. In both cases,

after considering the factual allegations against the state agency, the circuit court denied the

state agency’s assertion of sovereign immunity and set the case for trial. In both cases, the

state agency then filed an interlocutory appeal to this court. And in both cases, this court

reverses the circuit court’s denial of sovereign immunity and dismisses the state agency from

the lawsuit. Most notably, in both cases, this court reaches its decision to reverse the circuit

court by refusing to consider the same information the circuit court relied on in rejecting

sovereign immunity.

In both cases, the majority emphasizes (wrongly, in this context) that “[w]hether a

party is immune from suit is purely a question of law,” while simultaneously ignoring the

14 plaintiffs’ factual claims of ultra vires State action. In this case, the majority concludes that

AACD is entitled to sovereign immunity, since state law provides that the county assessor,

not AACD, is the one who actually conducts property assessments. See Ark. Code Ann. §

26-26-1101 (stating that “[e]ach year the county assessor shall . . . appraise and assess all real

property situated within the boundaries of the county”). 1 In doing so, the majority embraces

Chaney’s individual representation that county assessors are not actually required to use

AACD’s formulas and guidelines even though state law indicates otherwise. See Ark. Code

Ann. § 26-26-407(f)(1) (“In devising and developing methods of assessing and levying the

ad valorem property tax on real property, the Assessment Coordination Department shall

annually develop and publish valuation tables and other data that shall be used by county

assessors for assessing lands qualifying under this subchapter.”) (emphasis added). But even

if it were true that county assessors are not required by state law to use the formulas and

guidelines provided by AACD, halting the sovereign-immunity analysis there ignores a

fundamental reality: ultra vires State conduct can also occur through the way a State actor

exercises or administers the authority he or she holds pursuant to state law. If state law itself

does not require county assessors to use AACD’s formulas and guidelines, but AACD

effectively dictates the same through other means, and those formulas and guidelines result

1 The majority cites Kitchens v. Arkansas Appraisal Service, 233 Ark. 384, 344 S.W.2d 853 (1961), for the proposition that assessment manuals from AACD are not mandatory, but this court stopped well short of issuing that holding. See Kitchens, 233 Ark. at 385–86, 344 S.W.2d at 853–54 (“It is claimed that the word ‘shall’ makes the language of § 5 mandatory. We find it unnecessary to pass upon this, although it is true that the word ‘shall’ is frequently used in statutes as a synonym of the word ‘must’. Assuming that the language used is mandatory, we think that the appellees have complied with the language.”) (citation omitted).

15 in illegally or unconstitutionally excessive taxation, it is still ultra vires State conduct. The

entire point of Plaintiffs’-Appellees’ lawsuit is “(one way or the other—we, the citizens, are

being overtaxed),” but the majority’s decision prevents them from proving their case and

obtaining relief.

Once again, this court has elevated art. 5, § 20 (“[t]he State of Arkansas shall never

be made defendant in any of her courts”) above the rest of the Arkansas Constitution. They

have done so by reading art. 5, § 20 in isolation, uninformed by the individual guarantees

specified elsewhere in the Arkansas Constitution, despite our rules of constitutional

interpretation that require us to interpret the constitution as a whole. See, e.g., Ward v. Priest,

350 Ark. 345, 382, 86 S.W.3d 884, 898 (2002) (“It is a rule of universal application that the

Constitution must be considered as a whole, and that, to get the meaning of any part of it,

we must read it in the light of other provisions relating to the same subject.”). Article 5, §

20, found in the legislative article of the Arkansas Constitution, is nothing more than a

limitation on the legislature’s authority to pass certain laws. It in no way limits a citizen’s right

to obtain relief from illegal or unconstitutional State conduct. Affording sovereign immunity

to AACD and its director in this case renders meaningless art. 16, § 14 and its 10 percent

limit on property tax increases, as well as the individual protections found in article 2 of the

Arkansas Constitution. There must be an exception to sovereign immunity for illegal or

unconstitutional State conduct, and there must be a way to prove such conduct when it

occurs, lest we allow such violations to continue unmitigated and undeterred. Without such

basic protections, we cannot expect democracy to long survive.

16 Instead of the majority’s approach, we should simply consider the factual allegations

presented by the plaintiffs against the state agency and then ask whether the facts “so

construed” would establish bad-faith, unconstitutional, or ultra vires State conduct. See John

v. Faitak, 2020 Ark. 105, at 4, 594 S.W.3d 871, 873 (reversing circuit court’s award of

summary judgment pursuant to defendant’s assertion of quasi-judicial immunity where

plaintiff alleged conspiracy which, if proved, would be outside the scope of court order from

which defendant’s assertion of immunity stemmed).2 If the case proceeds to discovery, then

the ultra vires question can still be assessed under the summary-judgment standard found at

Ark. R. Civ. P. 56. That is exactly what happened in this case, and the circuit court correctly

identified a factual dispute as to whether the AACD guidelines issued to county assessors are

made “discretionary or directory.” Hence, a trial is necessary. The majority reverses the

circuit court by quoting an isolated statute for the unremarkable proposition that county tax

assessors are tasked with assessing property values, and simply ignores the well-supported

allegation that AACD effectively forces county assessors to use its illegal formulas and

guidelines when assessing property values in their respective counties.

One thing I hope the bench and the bar will remember after I retire is this—the right

to be free from unconstitutional or illegal government action means little if the facts

2 See also Kahle v. Leonard, 477 F.3d 544, 549–50 (8th Cir. 2007) (“On this appeal from the order denying Malone’s motion for summary judgment, we do not have jurisdiction to decide, for example, whether there is sufficient evidence for a jury to find that Kahle did not consent to the sexual contact with Leonard. But we do have jurisdiction to decide whether, assuming that all of the facts alleged by Kahle are true, Malone is entitled to qualified immunity as a matter of law.”).

17 otherwise warranting vindication of that right can be procedurally buried or simply ignored.

Due process requires more.

I would affirm.

ROBIN F. WYNNE, Justice, dissenting. Because the doctrine of sovereign

immunity does not bar this suit against Bear Chaney in his official capacity as Director of

the Arkansas Assessment Coordination Division of the State of Arkansas (AACD), I must

respectfully dissent.

In their consolidated appeals to the circuit court, appellees alleged that the assessed

values of their working interests in minerals calculated by the Assessor should be set aside

because they did not represent the true market value of those interests. As to Chaney,

appellees sought declaratory and injunctive relief related to the guidelines, computer

program, and formula AACD provides to county assessors for determining the assessed value

of working interests in oil and gas properties.

Regardless of whether the AACD guidelines at issue are discretionary or mandatory,

Chaney is not entitled to sovereign immunity in this case. If the guidelines and formula at

issue are contrary to the law (which has yet to be determined), there is no reason that AACD

cannot be enjoined from issuing them. Such a suit falls squarely within the long-recognized

category of permissible claims alleging ultra vires or illegal conduct and seeking only

declaratory and injunctive relief. Sovereign immunity is therefore inapplicable. See, e.g.,

Comm’n on Judicial Discipline & Disability v. Digby, 303 Ark. 24, 792 S.W.2d 594 (1990);

Ark. State Claims Comm’n v. Duit Constr. Co., 2014 Ark. 432, 445 S.W.3d 496.

Leslie Rutledge, Att’y Gen., by: William C. Bird, Sr. Ass’t Att’y Gen., for appellant.

18 Harrell, Lindsey & Carr, P.A., by: Paul E. Lindsey, for appellees.