Benton School District Lori Bacon, in Her Individual and Official Capacity And Lita Gattis, in Her Individual and Official Capacity v. Brandi Greer

2023 Ark. 160, 677 S.W.3d 799

• Court: Supreme Court of Arkansas
• Decided: November 9, 2023
• Status: Published

Opinion

Cite as 2023 Ark. 160 SUPREME COURT OF ARKANSAS No. CV-22-143

Opinion Delivered: November 9, 2023

BENTON SCHOOL DISTRICT; LORI BACON, IN HER INDIVIDUAL AND APPEAL FROM THE SALINE OFFICIAL CAPACITY; AND LITA COUNTY CIRCUIT COURT GATTIS, IN HER INDIVIDUAL AND [NO. 63CV-20-522] OFFICIAL CAPACITY APPELLANTS HONORABLE BRENT DILLON HOUSTON, JUDGE V. AFFIRMED IN PART; REVERSED BRANDI GREER AND REMANDED IN PART; APPELLEE MOTION TO DISMISS APPEAL DENIED; MOTION FOR PARTIAL DISMISSAL DISMISSED.

RHONDA K. WOOD, Associate Justice

This interlocutory appeal reaches us after the circuit court denied, in part, two

school-district employees’ motion for summary judgment for qualified immunity. The

immunity at issue comes from an Arkansas statute, Ark. Code Ann. § 21-9-301 (Repl.

2022). This statute provides immunity from both suit and liability for certain officials

“except to the extent that they may be covered by liability insurance.” Id. § 21-9-301(a).

The circuit court ruled that this statute applied to both a federal claim under 42 U.S.C.

§ 1983 and a state claim under the Arkansas Civil Rights Act. We hold this immunity statute

does not apply to a federal § 1983 cause of action. But we hold it does apply to the claims

brought under the Arkansas Civil Rights Act. I. Factual Background

The underlying lawsuit stems from a complaint filed by Brandi Greer against the

Benton School District, Lori Bacon (a principal in the district), and Lita Gattis (an assistant

superintendent). The complaint lodged several causes of action against these defendants. The

federal claims were under 42 U.S.C. § 1983 and the Rehabilitation Act of 1973. The state

claims were under the Arkansas Civil Rights Act, Ark. Code Ann. §§ 16-123-101 et seq.

(Repl. 2016 & Supp. 2023). Bacon and Gattis were sued in both their individual and official

capacities. We are reviewing only the partial denial of immunity on the claims against Bacon

and Gattis as individuals.

The circuit court’s order on summary judgment recited the relevant undisputed facts.

Brandi Greer had been a substitute teacher at Angie Grant Elementary School, working

through Kelly Services USA, LLC, a temporary agency. Greer’s child also attended this

school. Greer claimed another teacher at the school had mistreated her child, who has a

form of attention deficit hyperactivity disorder. Greer eventually removed her child from

Angie Grant Elementary and then filed an ethics complaint with the Arkansas Department

of Education against her child’s teacher.1 Because of this ethics report, Bacon told Kelly

Services that Greer could no longer work at Angie Grant Elementary. Then Lita Gattis, the

assistant superintendent, told Kelly Services that Greer could no longer work in the district

at all.

1 This complaint was deemed unfounded.

2 The court’s summary-judgment order then addressed liability. The court concluded

all defendants—the district, Gattis, and Bacon—were liable under § 1983 and the Arkansas

Civil Rights Act for violating Greer’s rights to free speech and to petition the government

under the First Amendment.2 The court then addressed a motion asking that Bacon and

Gattis be given qualified immunity in their individual capacities. The court granted the

motion in part and denied the motion in part. The court reasoned that Bacon and Gattis

were entitled to individual-capacity qualified immunity; even so, the court concluded that,

under Ark. Code Ann. § 21-9-301, this immunity would not apply to the extent the

defendants were covered by liability insurance.

Gattis and Bacon now appeal from the court’s partial denial of their motion for

qualified immunity. They assert this is an appeal from “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.” Ark. R. App. P.–Civ. 2(a)(10). To begin, we must decide whether

we have appellate jurisdiction.

Greer filed a motion to dismiss the appeal arguing that Bacon and Gattis cannot

appeal because the circuit court granted their motion for qualified immunity. But that’s not

how the court’s order reads. The order states that the immunity “request is . . . granted in

part and denied in part.” (Emphasis added.) Bacon and Gattis challenge only the partial denial

on appeal—that is, they limit their argument to whether they are subject to suit to the extent

2 The court also found liability under the federal Rehabilitation Act, but that claim is not at issue on appeal.

3 covered by insurance.3 Should we agree with their argument on appeal, they could be

dismissed from the lawsuit and no longer face trial on the question of damages. This is

precisely the reason a party can appeal on an interlocutory basis a ruling denying entitlement

to immunity. See Ark. State Claims Comm’n v. Duit Constr. Co., 2014 Ark. 432, at 5, 445

S.W.3d 496, 501. We accordingly deny Greer’s motion to dismiss the appeal.

Greer also filed a partial motion to dismiss her own federal section 1983 claims against

Bacon and Gattis in their individual capacities. But we lack jurisdiction beyond determining

whether the circuit court erred in denying summary judgment on immunity. City of Malvern

v. Jenkins, 2013 Ark. 24, at 6, 425 S.W.3d 711, 715. Accordingly, we dismiss Greer’s motion

for partial dismissal of her section 1983 claims.

II. Law and Analysis

A. Section 1983 Claims

The first issue involves the circuit court’s ruling on the section 1983 claims against

Bacon and Gattis in their individual capacities. Citing state law, the court granted Bacon

and Gattis’s motion for summary judgment on qualified immunity but ruled that their

motion was limited to the extent that they may be covered by liability insurance. The circuit

court appears to have concluded that the state-law statutory immunity contained in Ark.

3 On appeal, the parties have not contested the existence of insurance or whether it would cover any imposed liability. Those issues are not before us. Nor do we address the merits of the remainder of the court’s rulings on summary judgment or its findings on the granting, in part, of qualified immunity to Bacon and Gattis. The sole question before the court is whether Ark. Code Ann. § 21-9-301 should apply to Greer’s section 1983 and Arkansas Civil Rights claims.

4 Code Ann. § 21-9-301 limited appellants’ qualified immunity under federal law, making

them subject to suit even though any liability would be covered by insurance.

We review this issue de novo because entitlement to immunity from suit is a purely

legal question. City of Fayetteville v. Romine, 373 Ark. 318, 321, 284 S.W.3d 10, 13 (2008).

We have adopted the United States Supreme Court’s test for qualified immunity from

lawsuits based on section 1983. Robinson v. Langdon, 333 Ark. 662, 671, 970 S.W.2d 292,

296 (1998) (citing Robinson v. Beaumont, 291 Ark. 477, 725 S.W.2d 839 (1987)). We are

guided by federal courts in this area of law. Romine, 373 Ark. at 322, 284 S.W.3d at 13.

One case from the United States Supreme Court is instructive. See Howlett v. Rose,

496 U.S. 356 (1990). In Howlett, a Florida appellate court had ruled that the state’s sovereign

immunity protected a school board from being sued under section 1983 in state court. Id.

at 360. The Howlett court reversed this decision. It concluded the supremacy clause barred

a state-law rule “that governmental entities subject to § 1983 liability enjoy an immunity

over and above those already provided in § 1983.” See id. at 375. And, the court held, “[t]he

elements of, and the defenses to, a federal cause of action are defined by federal law.” Id.

(emphasis added). Howlett suggests that federal claims filed in state court are subject to federal

defenses. We decline to depart from Howlett’s federal-defense holding for this federal action.

Thus, Ark. Code Ann. § 21-9-301 does not impact a claim brought under section

1983. Section 1983 establishes a federal cause of action that can be filed in either state or

federal court. Newton v. Etoch, 332 Ark. 325, 334, 965 S.W.2d 96, 100 (1998). “As such, it

is the supreme law of the land, and any state claim of immunity must yield to it.” Id. We

have before “recognized [that] immunity under state law is not dispositive of a § 1983 claim

5 against state actors in their individual capacities, despite being brought in state court.” Early

v. Crockett, 2014 Ark. 278, at 10 n.5, 436 S.W.3d 141, 14 n.5.

We therefore reverse and remand the ruling denying in part the request by Bacon

and Gattis for qualified immunity against the section 1983 claims. Arkansas Code Annotated

section 21-9-301 does not apply to these federal claims. On remand, the court should

confine its ruling exclusively to the federal doctrine of qualified immunity and without

reference to Ark. Code Ann. § 21-9-301.

B. Arkansas Civil Rights Claim

The second issue involves the claims under the Arkansas Civil Rights Act. Appellants

argue that Ark. Code Ann. § 21-9-301 should not apply to these claims because it covers

only “typical torts,” and to do so would make bad public policy. Thus, they ask us to provide

them with the fuller protection of federal qualified immunity, which protects them both

from liability and from suit without an insurance exception.

The statutory language in Ark. Code Ann. § 21-9-301 has gone through several

changes since its inception. While the law started with immunity from tort claims, it was

later expanded to encompass immunity from “suit” in general. The legislature first enacted

immunity for political subdivisions through Act 165 of 1969. This Act provided immunity

from liability for damages and provided that no tort action would lie against municipal

corporations, counties, school districts, and other political subdivisions of the State:

It is hereby declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the State shall be immune from liability for damages, and no tort action shall lie against any such political subdivision, on account of the acts of their agents and employees.

6 Act 165 of 1969, § 1.

The legislature expanded this immunity in 1991 with Act 542. While retaining the

language that “no tort action shall lie,” it also added an additional “immunity from suit.”

Here is the relevant language:

[S]chool districts . . . shall be immune from liability and suit for damages. No tort action shall lie against any such political subdivision because of the acts of their agents and employees.

Act 542 of 1991, § 7 (emphasis added). Then, in 1993, the legislature carved out an

exception to this immunity from liability and suit “except to the extent . . . covered by

liability insurance.” Act 292 of 1993, § 2.

Today, these Acts are codified at Ark. Code Ann. § 21-9-301, which now reads as

follows:

Tort liability—Immunity declared

(a) It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, public charter schools, special improvement districts, law enforcement agencies for and certified law enforcement officers employed by a public or private institution of higher education, and all other political subdivisions of the state and any of their boards, commissions, agencies, authorities, or other governing bodies shall be immune from liability and from suit for damages except to the extent that they may be covered by liability insurance.

(b) No tort action shall lie against any such political subdivision because of the acts of its agents and employees.

(Emphasis added.)

The statute’s progression, therefore, encompassed three movements. The first

movement was the 1969 Act, which provided immunity from liability. The second

movement was the broader 1991 Act, which provided immunity from liability and suit.

7 The third movement was the 1993 Act, which retained immunity from liability and suit

“except to the extent . . . covered by liability insurance.”

Greer disputes this understanding of the statute, pointing to its heading, which reads

“Tort liability—Immunity declared.” She maintains that the immunity was meant to cover

typical torts rather than civil-rights claims. But the language does not have this limitation,

and civil rights violations are considered a type of tort. And the 1991 Act encompassed a

broader range of immunity beyond torts. Other sections of this Act provided immunity

from suit for those reporting adult maltreatment, reporting child drug abuse, reporting child

maltreatment, and providing information about child-support enforcement. See Act 542 of

1991, §§ 1–4.

And the plain text of the statute does not indicate that claims arising under the

Arkansas Civil Rights Act fall outside this statute’s ambit. While the heading can sometimes

shed light on a statute’s meaning, it “should never be allowed to override the plain words

of a text.” Antonin Scalia & Bryan A. Garner, Reading Law 221 (2012). Here, the plain

words of the statute apply to a suit for damages, like the one brought by Greer under the

Arkansas Civil Rights Act.

Finally, we have looked to and applied section 301 as the basis for qualified immunity

for claims brought under the Arkansas Civil Rights Act. See, e.g., Graham v. Cawthorn, 2013

Ark. 160, at 17, 427 S.W.3d 34, 46 (finding qualified immunity under section 301 for claim

against city police officer); City of Farmington v. Smith, 366 Ark. 473, 480, 237 S.W.3d 1, 6

(2006) (finding no qualified immunity under section 301 because the official violated clearly

established law); Smith v. Brt, 363 Ark. 126, 132, 211 S.W.3d 485, 490 (2005) (affirming a

8 finding of qualified immunity under section 301 from claim against city official). These cases

show that this court has consistently applied section 21-9-301 as the basis for qualified

immunity to civil-rights claims rooted in state law. We would be effectively overruling these

cases were we to now hold the statute was inapplicable to claims under the Arkansas Civil

Rights Act.

Appellants also maintain such a reading of the statute makes bad public policy. They

argue it requires employees with liability insurance to defend themselves in court while

allowing those without insurance to reap the full benefits of the immunity. But this court

cannot rewrite legislation that may have unintended real-world results. The General

Assembly sets policy for the state, not this court. Shelter Mut. Ins. Co. v. Lovelace, 2020 Ark.

93, at 9, 594 S.W.3d 84, 88. Should the General Assembly decide to alter the immunity

structure for municipalities and school districts, it can amend the statute. As discussed, it has

not held back from reconsidering immunity in the past.

We affirm the circuit court’s ruling that section 21-9-301 immunity, subject to the

insurance exception, applies to claims arising under the Arkansas Civil Rights Act.

Affirmed in part; reversed and remanded in part; motion to dismiss appeal denied;

motion for partial dismissal dismissed.

WOMACK and WEBB, JJ., concur.

SHAWN A. WOMACK, Justice, concurring. I agree with the majority in reversing

and remanding as to the 42 U.S.C. § 1983 claim. Likewise, I agree it is proper to deny

Appellee’s motion to dismiss the appeal and her partial motion to dismiss her federal § 1983

claim. Finally, I also agree with the majority that the circuit court’s order should be affirmed

9 as to the Arkansas Civil Rights Act claim. Yet, I write separately because I take issue with

the majority’s characterization of Ark. Code Ann. § 21-9-301. Contrary to the majority’s

assertion, Ark. Code Ann. § 21-9-301 does not grant political subdivisions “immunity from

‘suit’ in general.” The majority overemphasizes the language from subsection (a) of the

relevant statute and effectively reads it in isolation to reach such a conclusion. When the

statute is read in its entirety, including the title and subsection (b), it is clear from the plain

text that political subdivisions are only entitled to statutory immunity from tort claims. The

title reads “Tort liability–Immunity Declared.” Subsection (b) provides in part, “No tort

action shall lie . . . .” Thus, the majority’s claim that § 21-9-301 grants political subdivisions

immunity from suit in general, rather than immunity from suit sounding in tort, is at clear

odds with a plain reading of the statute.

Although this court has held in the past that Ark. Code Ann. § 21-9-301 provides

political subdivisions immunity from claims under the Arkansas Civil Rights Act, it has

never provided any articulable reason for doing so.1 It has not reasoned that Arkansas Civil

Rights claims are tort claims, nor has it stated that § 21-9-301 provides political subdivisions

immunity from suit in general. Instead, this court has merely cited § 21-9-301 as the basis

for a political subdivision’s or its employees’ immunity. Thus, the majority’s reliance on

these cases to support its characterization of the relevant statute as providing immunity from

suit in general is unavailing. As it is written, § 21-9-301 does not provide general immunity

1 To support its proposition, the majority cites Graham v. Cawthorn, 2013 Ark. 160, 427 S.W.3d 34; City of Farmington v. Smith, 366 Ark. 473, 237 S.W.3d 1 (2006); and Smith v. Brt, 363 Ark. 126, 211 S.W.3d 485 (2005).

10 from suit. Should the General Assembly wish to provide general immunity from suit, rather

than immunity from tort claims, it can amend the statute. Nevertheless, because civil rights

claims are considered a type of tort, the circuit court’s order should be affirmed on this

issue.2

For these reasons, I cannot join the majority’s opinion in full.

I respectfully concur.

WEBB, J., joins.

2 The Supreme Court of the United States has repeatedly explained that civil rights suits are analogous to personal injury tort actions. See, e.g., Goodman v. Lukens Steel Co., 482 U.S. 656 (1987); Wilson v. Garcia, 471 U.S. 261 (1985).