Cite as 2025 Ark. 107 SUPREME COURT OF ARKANSAS No. CV-24-645
Opinion Delivered: June 5, 2025 TOMMY LAND, IN HIS CAPACITY AS COMMISSIONER OF STATE APPEAL FROM THE GREENE LANDS FOR THE STATE OF COUNTY CIRCUIT COURT ARKANSAS [NO. 28CV-22-388] APPELLANT HONORABLE RICHARD LUSBY, JUDGE V. REVERSED. BAS, LLC; PARCEL STRATEGIES, LLC; AND BANYAN CAPITAL INVESTMENTS, LLC APPELLEES
NICHOLAS J. BRONNI, Associate Justice
This case is about whether the Commissioner of State Lands provided
constitutionally adequate notice to BAS, a California LLC, before selling its Arkansas
property to recover delinquent property taxes. Because the undisputed facts show that the
Commissioner’s notice to BAS was constitutionally sufficient, BAS fails to raise a valid claim
and sovereign immunity applies. We reverse.
I. Facts and Procedural Background
In October 2016, BAS purchased commercial property in Paragould, Arkansas. The
property’s deed listed BAS’s mailing address as 3735 Winford Drive, Tarzana, California.
Although Gary Solnit, one of BAS’s two members, temporarily resided at that address, BAS
conducted its business operations from a different location in Beverly Hills, California. Solnit asked the title company to change the deed to reflect the Beverly Hills address, but
that change was never made. BAS also failed to register its mailing address with the county
as required by state law. See Ark. Code Ann. § 26-35-705.
After BAS failed to pay its property taxes in 2017 and 2018, the Greene County
Clerk certified the property to the Commissioner of State Lands for nonpayment. As
required by statute, the Commissioner attempted to notify BAS of the upcoming tax sale
and inform it of its right to redeem the property. On August 17, 2021, the Commissioner
sent certified mail to BAS at 3735 Winford Drive in Tarzana, California—“the owner’s last
known address.” Ark. Code Ann. § 26-37-301. Although certified mail typically requires
a signature to complete delivery, the United States Postal Service temporarily relaxed that
requirement during the COVID-19 pandemic. The Commissioner also requested a return
receipt of the recipient’s signature, even though the statute does not require one.
For reasons unknown, the Commissioner never received that physical return receipt.
But using the USPS tracking data, the Commissioner verified that the notice had been
“[d]elivered” to a front desk, reception area, or mailroom in Tarzana at 1:02 p.m. on August
24, 2021. Having no reason to question that data, the Commissioner did not investigate to
determine whether 3735 Winford Drive had any such facilities. In June 2022, the
Commissioner sent an additional notice by certified mail directly to the Paragould property
itself. That notice was returned undelivered.
Receiving no response from BAS, the Commissioner proceeded with the sale. On
August 2, 2022, third parties purchased the property. Two months later, those purchasers
filed an action to quiet title on the property. In response, BAS timely filed this lawsuit
2 against the Commissioner, in his official capacity, contesting the validity of the tax sale. See
Ark. Code Ann. § 26-37-203 (in general, “an action to contest the validity of a [tax
delinquency sale]” must be “commenced within ninety (90) days after the date of
conveyance”). BAS sought an injunction requiring the Commissioner to set aside the sale.
See Ark. Code Ann. § 26-37-204 (the Commissioner “shall” set aside a tax sale if the
“interested parties did not receive the required notice”). BAS’s complaint alleged that the
Commissioner violated its due process rights under both the federal and state constitutions
when he conducted the sale without providing proper notice. It also claimed that the sale
constituted an unlawful taking under both the Fifth Amendment and the Arkansas
Constitution for the same reason.
The Commissioner moved for summary judgment, asserting that sovereign
immunity barred BAS’s claims. The circuit court denied that motion because it found that
genuine issues of material fact remained concerning whether the Commissioner had violated
BAS’s due process rights. That, it held, prevented it from determining whether BAS’s claim
for injunctive relief fell within the recognized exception to sovereign immunity for illegal
or unconstitutional acts. The Commissioner filed an interlocutory appeal. See Ark. R. App.
P.–Civ. 2(a)(10).
II. Discussion
The Commissioner appeals the denial of his motion for summary judgment based on
sovereign immunity. Summary judgment is appropriate only when no material dispute of
fact remains and the moving party is entitled to judgment as a matter of law. Gates v.
Hudson, 2025 Ark. 48, at 4–5, ___ S.W.3d ___, ___. We review decisions granting or
3 denying summary judgment de novo. See id. at 5, ___ S.W.3d at ___; Ark. Cmty. Corr. v.
Barnes, 2018 Ark. 122, at 2, 542 S.W.3d 841, 842. Applying that standard, we reverse the
circuit court’s decision denying the Commissioner’s motion for summary judgment.
A. Sovereign Immunity
We begin with first principles. Our constitution provides that “[t]he State of
Arkansas shall never be made defendant in any of her courts.” Ark. Const. art. 5, § 20.
That provision bars actions both against the State itself and “against a state official in his or
her official capacity.” Ark. Dep’t of Fin. & Admin. v. Lewis, 2021 Ark. 213, at 3, 633 S.W.3d
767, 770. An official-capacity suit is “a suit against that official’s office and is [consequently]
no different than a suit against the State itself.” Id. at 3, 633 S.W.3d at 770; see also Bd. of
Trs. of Univ. of Ark. v. Andrews, 2018 Ark. 12, at 5, 535 S.W.3d 616, 619 (“A suit against
the State is barred.”). Indeed, by definition, an official-capacity suit seeks to “control the
actions of the State or subject it to liability” via its officers. Lewis, 2021 Ark. 213, at 3, 633
S.W.3d at 770; Hutchinson v. Armstrong, 2022 Ark. 59, at 10, 640 S.W.3d 395, 400
(Womack, J., dissenting) (“[S]overeign immunity [applies] to state employees sued in their
official capacities.”).
That bar, however, is not absolute. We have recognized an exception for “lawsuits
seeking declaratory or injunctive relief against state officials committing ultra vires,
unconstitutional, or illegal acts.” Osage Creek Cultivation, LLC v. Ark. Dep’t of Fin. &
Admin., 2023 Ark. 47, at 6, 660 S.W.3d 843, 847. That exception is narrow and applies
only when a plaintiff asserts a valid claim that identifies an illegal or unconstitutional act.
See Brizendine v. Dep’t of Hum. Servs., 2025 Ark. 34, at 3, 708 S.W.3d 351, 353 (“A plaintiff
4 seeking to surmount sovereign immunity under this exception is not exempt from
complying with our fact-pleading requirements.”); Lewis, 2021 Ark. 213, at 4, 633 S.W.3d
at 770 (similar).
Consistent with that limitation, we have held that to avoid dismissal on sovereign
immunity grounds, a plaintiff alleging a due process violation must “plead facts that, if
proven, would demonstrate a due process violation that she can argue was an illegal or
unconstitutional act sufficient to avoid sovereign immunity.” Williams v. McCoy, 2018 Ark.
17, at 4, 535 S.W.3d 266, 269. When a plaintiff fails to do so, sovereign immunity applies
and an official-capacity defendant is entitled to summary judgment. See Chaney v. Union
Producing, LLC, 2020 Ark. 388, at 7, 611 S.W.3d 482, 487. That rule is particularly relevant
here, and it is with that rule in mind that we turn to BAS’s substantive claims.
B. Due Process
The trial court concluded that a genuine dispute of material fact exists about whether
the Commissioner’s attempt to notify BAS was reasonable, making it unclear whether an
exception to sovereign immunity applies. We disagree. Instead, we conclude the facts
about the Commissioner’s efforts are undisputed and that, as a matter of law, the
Commissioner’s efforts satisfied due process. BAS has therefore failed to allege an illegal or
unconstitutional act that would overcome sovereign immunity, and the Commissioner is
entitled to summary judgment.
1. The Due Process Clause of the Fourteenth Amendment prohibits states “from
depriving any person of property ‘without due process of law.’” Dusenbery v. United States,
534 U.S. 161, 167 (2002); U.S. Const. amend. 14, § 1. As relevant here, that requires states
5 to provide property owners “‘notice and an opportunity to be heard’” before a property can
be sold for nonpayment of taxes. Dusenbery, 534 U.S. at 167 (quoting United States v. Jones
Daniel Good Real Prop., 510 U.S. 43, 48 (1993)); accord Linn Farms & Timber Ltd. P’ship v.
Union Pac. R.R. Co., 661 F.3d 354, 357–58 (8th Cir. 2011). But “[d]ue process does not
require that a property owner receive actual notice before the government may take his
property.” Jones v. Flowers, 547 U.S. 220, 223 (2006) (citing Dusenbery, 534 U.S. at 170).
Nor does it require Herculean “or heroic efforts” to notify owners. Dusenbery, 534 U.S. at
170–71; accord Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 315 (1950).
“Rather,” the Supreme Court has explained, “due process requires the government to
provide ‘notice reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an opportunity to present their
objections.’” Jones, 547 U.S. at 226 (quoting Mullane, 339 U.S. at 314).
Reflecting that standard, the Supreme Court has also made clear that the government
may not rely on an attempted notice that it knows or “had good reason to suspect” has
failed. Id. at 230. So, for instance, while “mailed notice of a pending tax sale” is generally
“constitutionally sufficient,” Dusenbery, 534 U.S. at 170, that is not the case “when the
government becomes aware prior to the taking that its attempt at notice has failed.” Jones,
547 U.S. at 227; see also Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800 (1983) (where
the relevant party’s “name and address are reasonably ascertainable[,]” mailed notice is
virtually “certain to ensure actual notice”). Instead, as in Jones, when a mailed notice is
returned undelivered and the government knows the owner is “no better off than if the
notice had never been sent,” the government is required to “take further reasonable steps if
6 any [are] available.” Jones, 547 U.S. at 230 (quoting Malone v. Robinson, 614 A.2d 33, 37
(D.C. 1992)). Indeed, due process requires the government to do what a reasonable person
would do before taking and selling an owner’s property—and taking “no further action is
not what someone ‘desirous of actually informing’ [the owner] would do.” Id.
2. Applying that standard here, the undisputed facts demonstrate that the
Commissioner did not violate BAS’s due process rights when it took and sold the Paragould
property for nonpayment of taxes. The circuit court erred in concluding otherwise.
Start with the circuit court’s conclusion that a genuine dispute of material facts
precluded summary judgment. It did not identify any such disputes, and on this record,
even viewing the evidence in the light most favorable to BAS, we are unable to identify
any. On the contrary, the record demonstrates and the parties agree that: (1) in August
2021, the Commissioner sent a notice via certified mail, return receipt requested, to the
Tarzana address on the Paragould property deed; (2) BAS did not conduct business at that
address, but one of its members had previously resided there; (3) the Commissioner never
received a physical return receipt; (4) the Commissioner obtained USPS tracking data
indicating that the notice had been delivered to a front desk, reception area, or mailroom at
the Tarzana address; and (5) the Commissioner did not know or investigate whether the
Tarzana address has such an area.
Given that, as best as we can tell, the circuit court appears to have concluded—not
that factual disputes remained but—that the parties disputed whether the facts showed a due
process violation. But whether those facts add up to a due process violation is a legal
question that does not preclude summary judgment. See Stauch v. City of Columbia Heights,
7 212 F.3d 425, 431 (8th Cir. 2000) (“[D]ue process is a question of law for the court to
determine.”); see also Norton v. Hinson, 337 Ark. 487, 490, 989 S.W.2d 535, 536 (1999)
(“[S]ummary judgment . . . [does] not involve any factual findings.”). The circuit court
erred in suggesting otherwise.
Next, the merits. Accepting, as we must, those undisputed facts as true, we conclude
that the Commissioner’s August 2021 mailing was “reasonably calculated to reach the
intended recipient” and inform it of an upcoming tax sale. Jones, 547 U.S. at 226. That
notice was sent via certified mail to the property owner’s last known address in Tarzana.
The Commissioner had identified that address using BAS’s recorded deed; he did so because
BAS had violated state law by failing to register its mailing address with the county. Nothing
in the record suggests the Commissioner knew—or had any reason to suspect—the Tarzana
address was not accurate and up to date. Against that backdrop, BAS does not seriously
dispute the reasonableness of that attempt to provide notice and that, if that is all we knew,
the Commissioner’s effort would satisfy due process. Nor could it. Cf. Robinson v.
Hanrahan, 409 U.S. 38, 40 (1972) (“the State knew that appellant was not at the address to
which the notice was mailed” (emphasis added)).
BAS claims instead that, as in Jones, subsequent facts and circumstances should have
alerted the Commissioner that his mailing had failed and that he needed to take additional
steps to notify BAS of the tax sale. In particular, BAS argues that the lack of a physical
return receipt and absence of a mailroom at the Tarzana address should have alerted the
Commissioner that there was a problem. That argument badly misses the mark.
8 Consider the missing receipt. BAS’s argument wrongly conflates not receiving a
physical, signed returned receipt with a notice being returned undelivered. The two are
not equivalent. Returned mail has not been delivered, and “when a letter is returned by
the post office, the sender will ordinarily attempt to resend it, if it is practicable to do so.”
Jones, 547 U.S. at 230. By contrast, a missing return receipt does not show that notice
failed—it merely shows the receipt has not been returned. That could be true because the
receipt, as opposed to the notice itself, has gone awry. So at worst, the lack of a return
receipt arguably raises a question about delivery. And if the Commissioner had failed to
follow up, there might very well have been a due process problem here.
But that is not the case. Rather, the record demonstrates that, lacking a return
receipt, the Commissioner examined USPS tracking data and confirmed the notice “was
delivered to the front desk, reception area, or mail room at 1:02 pm on August 24, in
Tarzana, CA 91356.” Hence, far from neglecting the issue, the Commissioner did what
anyone in his situation would have done: he checked the presumptively reliable tracking
data. BAS does not really dispute that.
Instead, faced with that reasonable effort, BAS attempts to shift the inquiry and argues
that the Commissioner was required to take another step and verify that the Tarzana address
had a front desk, reception area, or mail room. As BAS sees it, if the Commissioner had
expanded his investigation, he would have known the Tarzana address was a residential
address without any such facilities, and this would have prompted him to reattempt notice.
Yet BAS never explains why the Commissioner should have second-guessed the USPS
tracking data. Nor does the record reveal any facts that would give him a reason to do so.
9 As a result, BAS’s attempt to analogize this case to Jones, where the State knew the notice
had failed, falls flat. See Jones, 547 U.S. at 234 (“What [additional] steps are reasonable in
response to the new information depends upon what the new information reveals.”).
To be sure, the Commissioner could have done more here. He could have used
Google Street View to investigate the Tarzana address and that might, as BAS argues, have
prompted him to question whether what appears to be a residential address has a front desk,
reception area, or mail room. He could have sent more than one mailing, including regular
mail, to the same address. See id. at 235. He could have posted notice on the property,
especially since his decision to mail notice to the property itself was returned undelivered.1
Id. He could have conducted “[a]n open-ended search for a new address,” id. at 236, or
contacted the California Secretary of State to obtain an alternative address for BAS. That is
what the third-party purchasers in the companion quiet-title case did, and BAS’s actual
notice of that action suggests that would have been a better approach.
But it is not for us to decide whether the process could have been better as the
constitution does not require the state to employ every conceivable means to provide notice.
See Dusenbery, 534 U.S. at 170. Nor would such an approach be practical since there will
always be something else the government could have done. Rather, due process requires the
government to act “as one desirous of actually informing” the property owner of the
impending tax sale. Mullane, 339 U.S. at 315. And faced with USPS tracking data indicating
1 BAS does not argue that the return of the June 2022 mailing required the Commissioner to take additional steps. It merely argues that second mailing itself was not a reasonable additional step.
10 that the Commissioner’s notice had been delivered, we cannot say that due process required
the Commissioner to do more or that his efforts were a mere “gesture.” Id.
Ultimately, while due process requires a fact-intensive analysis to determine whether
notice was reasonable “under all the circumstances,” id. at 314, BAS was still required to
identify facts demonstrating that the Commissioner acted unreasonably. It has not done so.
We conclude that the August 2021 notice was “reasonably certain to inform” BAS of the
tax sale. Jones, 547 U.S. at 226. The Commissioner therefore did not violate BAS’s due
process rights, and BAS’s claims premised on such a violation fail as a matter of law. Thus,
on this record, BAS has failed to plead an unconstitutional or illegal act that would overcome
sovereign immunity, and the circuit court should have granted the Commissioner’s motion
for summary judgment.
C. Takings Claim
BAS’s attempt to recast its due process claim as a takings claim does not alter the
analysis. BAS’s takings claims rely on the argument that—under Jones—a tax sale without
proper notice constitutes a taking under both the Fifth Amendment and the Arkansas
Constitution. See Oral Argument at37:20 https://arkansas-sc.granicus.com/MediaPlayer.p
hp?view_id=4&clip_id=1700 (May 8, 2025), archived at https://perma.cc/9VA6-PHXA.
Land v. BAS, 2025 Ark. ___ (No. CV-24-645). Even assuming BAS’s characterization of
Jones is correct, that would not help BAS. On the contrary, those claims too would fail as
a matter of law because the undisputed facts establish that the Commissioner provided BAS
with adequate notice before conducting the tax sale. See supra at __. So as above, those
claims do not establish an illegal act that allows BAS to overcome sovereign immunity.
11 Yet that is hardly the only problem with BAS’s argument. Rather, it fails for an even
more fundamental reason: Jones involved a procedural due process claim––not a takings
claim. While Jones does say that notice is required “[b]efore a State may take property,”
547 U.S. at 223, it did not use the term “take” in the manner contemplated by either the
Fifth Amendment or article 2, section 22 of the Arkansas Constitution. Nor could it since
tax sales represent a “mandated ‘contribution from individuals . . . for the support of the
government . . . for which they receive compensation in the protection which government
affords.’” Tyler v. Hennepin Cnty., Minnesota, 598 U.S. 631, 637 (2023) (quoting County of
Mobile v. Kimball, 102 U.S. 691, 703 (1881)) (alterations in original).
That makes sense because takings clauses are “designed to bar Government from
forcing some people alone to bear public burdens which, in all fairness and justice, should
be borne by the public as a whole.” Id. at 647 (quoting Armstrong v. United States, 364 U.S.
40, 49 (1960)); accord Bagley v. Castile, 42 Ark. 77, 85 (1883) (“[T]he forfeiture and sale of
lands by summary process, for the purpose of enforcing the payment of taxes, have not been
considered by most courts as that deprivation of property which our and similar constitutions
meant to prohibit.”). A tax sale does the opposite; it ensures individuals do not avoid their
share of the public burden. See Bagley, 42 Ark. at 85 (“The twenty-second section simply
regards the exercise of the right of eminent domain, which is something wholly different in
nature from the taxing power.”).
We therefore hold that BAS’s attempt to recast its due process claim as a takings claim
likewise fails as a matter of law; it has failed to allege or offer evidence of an unconstitutional
12 or illegal act that would overcome sovereign immunity; and the Commissioner is entitled
to summary judgment.
D. Supremacy Clause Claim
One loose end remains. Recognizing the weakness of its claims on the merits, BAS
tries to sidestep the sovereign immunity issue altogether. It suggests that—whatever our
constitution says—the federal Supremacy Clause requires us to review his federal claims.
That argument, which BAS does not fully develop in its briefing, fares no better than its
other arguments.
Begin with basic principles. As Alden v. Maine explains, “history, practice, precedent,
and the structure of the Constitution” establish that “[s]tates retain immunity from private
suit in their own courts.” 527 U.S. 706, 754 (1999). Indeed, as the ratification debates
demonstrate, a state’s “right to assert immunity from suit in its own courts was a principle
so well established that no one conceived it would be altered by the new Constitution.” Id.
at 741. And had the states not “retain[ed] a constitutional immunity from suit in their own
courts, the need for the Ex parte Young rule would have been less pressing, and the rule
would not have formed so essential a part of [the federal] sovereign immunity doctrine. [Ex
parte Young, 209 U.S. 123 (1908)].” Id. at 748.
To be sure, the Supreme Court has recognized narrow exceptions to the general
rule—like where “[t]he States have consented” to be sued “pursuant to the plan of the
Convention or to subsequent constitutional Amendment.” Id. at 755. For instance, “[i]n
ratifying the Constitution, the States consented to suits brought by other States or by the
Federal Government.” Id. And perhaps most relevant here, Reich v. Collins, 513 U.S. 106
13 (1994), held that “despite its immunity from suit in federal court, a State that holds out what
plainly appears to be ‘a clear and certain’ postdeprivation remedy for taxes collected in
violation of federal law” can be subject to suit in state court. Id. at 740.
Yet even assuming BAS meant to invoke that exception here, it would not change
the analysis. The undisputed record here demonstrates that the Commissioner provided
constitutionally sufficient notice before it proceeded with the challenged tax sale. So BAS
cannot plausibly claim that Arkansas law has prevented it from vindicating its federal rights—
only that it has required BAS, like any litigant, to present evidence of a viable legal claim to
proceed. And nothing in the federal constitution suggests BAS is entitled to press claims
that fail as a matter of federal law. Cf. Howlett By & Through Howlett v. Rose, 496 U.S. 356,
380 (1990) (“A State may adopt neutral procedural rules to discourage frivolous litigation
of all kinds, as long as those rules are not pre-empted by a valid federal law. A State may
not, however, relieve congestion in its courts by declaring a whole category of federal claims
to be frivolous. Until it has been proved that the claim has no merit, that judgment is not
up to the States to make.”). Indeed, far from “regularly . . . entertain[ing] analogous suits,”
our constitution expressly prohibits our courts from hearing suits against the State where
there is no evidence the state has acted unlawfully. See Haywood v. Drown, 556 U.S. 729,
739-40 (2009) (finding Supremacy Clause violation where state law barred state courts of
general jurisdiction from hearing certain suits based on content rather than “concerns of
power over the person and competence over the subject matter”). So we reject BAS’s claim
that the Supremacy Clause somehow entitles it to pursue meritless claims.
14 III. Conclusion
Nothing in this case turns on the wisdom of the current notice statutes. Whether
that current statutory scheme strikes the best cost-benefit balance, could be marginally
improved, or could be tweaked to provide better options is beyond the purview of this case
and is for the “legislature to resolve.” Standridge v. Fort Smith Pub. Schs., 2025 Ark. 42, at
11, 708 S.W.3d 773, 781. Instead, our role is limited to deciding whether the
Commissioner’s actions here were constitutionally sufficient. On this record, the
undisputed facts show that the Commissioner’s August 2021 notice—sent by certified mail
to BAS’s last known address—was reasonably calculated to inform BAS of the impending
tax sale. BAS’s claims therefore fail as a matter of law; BAS has not overcome sovereign
immunity; and the Commissioner is entitled to summary judgment.
Reversed.
WEBB, J., concurs.
BAKER, C.J., concurring in part and dissenting in part.
HUDSON and WOMACK, JJ., dissent.
KAREN R. BAKER, Chief Justice, concurring in part and dissenting in part.
I agree with the majority’s decision to reverse with regard to the state claims; however, I
write separately for the reasons stated in my dissent in Board of Trustees of the University of
Arkansas v. Andrews, 2018 Ark. 12, at 13, 535 S.W.3d 616, 624, and its progeny.
In the present case, the majority states that “[w]e have recognized an exception for
‘lawsuits seeking declaratory or injunctive relief or injunctive relief against state officials
committing ultra vires, unconstitutional, or illegal acts.’ Osage Creek Cultivation, LLC v.
15 Arkansas Dep’t of Fin. & Admin., 2023 Ark. 47, at 6, 660 S.W.3d 843, 847.” The majority
ultimately reverses the circuit court’s denial of summary judgment and concludes that BAS
“failed to allege an illegal or unconstitutional act that would overcome sovereign immunity,
and the Commissioner is entitled to summary judgment.” However, this position conflicts
with the broad language of Andrews, 2018 Ark. 12, 535 S.W.3d 616. Article 5, section 20
of the Arkansas Constitution provides that “[t]he State of Arkansas shall never be made
defendant in any of her courts.” In my view, the state claims must be reversed and dismissed
on the basis of this court’s precedent established in Andrews, in which the majority held,
[W]e interpret the constitutional provision, “The State of Arkansas shall never be made a defendant in any of her courts,” precisely as it reads. The drafters of our current constitution removed language from the 1868 constitution that provided the General Assembly with statutory authority to waive sovereign immunity and instead used the word “never.” See Ark. Const. of 1868, art. 5, § 45; Ark. Const. art. 5, § 20. The people of the state of Arkansas approved this change when ratifying the current constitution.
2018 Ark. 12, at 10–11, 535 S.W.3d at 622. In other words, the majority held that “never
means never,” and Andrews did not identify exceptions, exemptions, or the like. See Banks
v. Jones, 2019 Ark. 204, at 11, 575 S.W.3d 111, 118 (Baker, J., concurring); see also Ark. Oil
& Gas Comm’n v. Hurd, 2018 Ark. 397, at 18, 564 S.W.3d 248, 258 (Baker, J., dissenting).
Thus, because Andrews has not been overruled, the state claims are barred under its broad
language. In sum, I would reverse and dismiss the state claims.
However, sovereign immunity under the Arkansas Constitution cannot serve as a bar
to federal claims. Therefore, as noted in Justice Hudson’s dissenting opinion, issues of
material fact remain, and I would affirm as to the federal claims.
Accordingly, I concur in part and dissent in part.
16 COURTNEY RAE HUDSON, Justice, dissenting. I would affirm the circuit court’s
order denying the Commissioner’s motion for summary judgment, in which he alleged
entitlement to sovereign immunity. Sovereign immunity is not applicable when, as here, a
plaintiff alleges unconstitutional state action and seeks only injunctive relief, not damages.
Further, there remain issues of material fact or inferences from the facts that are
determinative of BAS’s claims. Therefore, I respectfully dissent.
As the majority acknowledges, we have recognized an exception to sovereign
immunity for “lawsuits seeking declaratory or injunctive relief against state officials
committing ultra vires, unconstitutional, or illegal acts.” Osage Creek Cultivation, LLC v.
Ark. Dep’t of Fin. & Admin., 2023 Ark. 47, at 6, 660 S.W.3d 843, 847. Here, we have a
somewhat atypical intersection of our doctrine of sovereign immunity and the denial of a
motion for summary judgment—not a motion to dismiss. The majority has made a
determination regarding the merits of the lawsuit to find that the Commissioner is entitled
to sovereign immunity. But summary judgment is not appropriate if, under the evidence,
reasonable minds might reach different conclusions from the same undisputed facts. See
Cannady v. St. Vincent Infirmary Med. Ctr., 2018 Ark. 35, at 6, 537 S.W.3d 259, 263. This
court views the evidence in the light most favorable to the party against whom the motion
was filed, resolving all doubts and inferences against the moving party. Id.
Due process is a fact-intensive inquiry. The Commissioner concedes that he had no
knowledge of the signed receipt (by an unknown recipient) prior to the tax sale. He argues
that this fact is inconsequential because further steps are required only if mail is returned
unclaimed. But this is too narrow a reading of Jones v. Flowers, 547 U.S. 220 (2006). It is
17 true that in Jones the tax-sale notice was returned unclaimed. But the issue was whether due
process entails further responsibility when the government becomes aware prior to the
taking that its attempt at notice has failed. To use the Supreme Court’s example in Jones,
“[i]f the Commissioner prepared a stack of letters to mail to delinquent taxpayers, handed
them to the postman, and then watched as the departing postman accidentally dropped the
letters down a storm drain, one would certainly expect the Commissioner’s office to prepare
a new stack of letters and send them again.” Jones, 547 U.S. at 229. The Supreme Court
stated that failure to follow up under such circumstances would not be reasonable, “despite
the fact that the letters were reasonably calculated to reach their intended recipients when
delivered to the postman.” Id.
In the present case, the circuit court found as follows:
[T]he central issue is whether the Commissioner’s steps were “reasonably calculated” to give notice “under all the circumstances” which include the nature and process of certified mail delivery, the content of the USPS tracking report and the inferences that can be drawn. What is and is not reasonably calculated and what are all the circumstances are matters to be determined by the finder of fact. This Court declines to find as a matter of law that the efforts of the Commissioner were reasonably calculated to provide notice.
“[D]ue process is flexible and calls for such procedural protections as the particular
situation demands.” Gilbert v. Homar, 520 U.S. 924, 930 (1997). Here, there are unresolved
issues of fact regarding the lack of the requested return receipt, how USPS COVID
protocols might have affected delivery, and whether or to what extent the Commissioner
relied on the USPS online tracking. All these factors potentially go to whether the
Commissioner became aware prior to the tax sale that its attempt at notice had failed.
18 On this record, BAS has pleaded an unconstitutional or illegal act that, if proved,
would overcome sovereign immunity, and the circuit court correctly denied the
Commissioner’s motion for summary judgment. Therefore, I would affirm the circuit
court’s order holding that the Commissioner is not entitled to sovereign immunity.
I respectfully dissent.
SHAWN A. WOMACK, Justice, dissenting. This case exemplifies how messy this
court’s sovereign immunity jurisprudence is. The court should retreat from its misguided
approach and return to the text and original public meaning of article 5, section 20 of the
Arkansas Constitution. That is, absent an express constitutional provision to the contrary,
the State shall never be made a defendant in any of its courts.1 Here, however, there is an
express constitutional provision to the contrary that provides an exception to sovereign
immunity for BAS’s state law claims: article 2, section 22 of the Arkansas Constitution. And
under a proper understanding of article 5, section 20, Haywood v. Drown ties this court’s
hands on BAS’s federal claims.2 Accordingly, Land is not entitled to summary judgment at
this stage.
For purposes of this appeal, Land moved for summary judgment on the grounds that
sovereign immunity barred BAS’s claims against him as a state actor. 3 In doing so, Land
1 Ark. Const. art. 5, § 20; Thurston v. League of Women Voters of Ark., 2022 Ark. 32, at 17, 639 S.W.3d 319, 327 (Womack, J., dissenting). 2 556 U.S. 729 (2009). 3 See Ark. R. App. P.–Civ. 2(a)(10) (allowing interlocutory appeals of “[a]n order denying a motion to dismiss or for summary judgment based on the defense of sovereign immunity or the immunity of a government official”); see Muntaqim v. Hobbs, 2017 Ark. 97,
19 argued “that BAS cannot state an exception to sovereign immunity[.]” But he is wrong.
The only true exceptions to article 5, section 20 are those that are found in the Arkansas
Constitution or, as explained later, are imposed by the Supreme Court of the United States.
There is no textual basis for the exceptions of unconstitutional, illegal, or ultra vires acts that
this court has created from whole cloth.4 The past reliance on Ex Parte Young as some shield
for this court’s analysis is misplaced.5 The Supreme Court did not decide Ex Parte Young
until well after Arkansas ratified article 5, section 20 in 1874; the concept of such a theory
was completely foreign to anyone involved in the drafting or ratification of our current
constitution.
That being said, article 2, section 22 of the Arkansas Constitution provides an express
and constitutionally based exception to sovereign immunity. In full, article 2, section 22
provides that “[t]he right of property is before and higher than any constitutional sanction;
and private property shall not be taken, appropriated or damaged for public use, without
just compensation therefor.” Because the right to property is “before and higher than any
constitutional sanction,” sovereign immunity, a constitutional sanction, cannot be an obstacle
at 2, 514 S.W.3d 464, 466 (explaining that the denial of a motion for summary judgment is typically not a final order and, therefore, not immediately appealable). 4 See, e.g., Ark. Dep’t of Fin. & Admin. v. Carpenter Farms Med. Grp., LLC, 2020 Ark. 213, at 7, 601 S.W.3d 111, 117 (wrongly claiming that article 5, section 20 “allow[s] actions that are illegal, unconstitutional or ultra vires to be enjoined”) (internal quotation marks omitted). 5 209 U.S. 123 (1908).
20 to a claim of this right.6 Therefore, sovereign immunity cannot defeat BAS’s state law claims
against Land regarding the taking of its property.
Of course, the State, like any other defendant, could move for summary judgment
on the grounds that there are no disputed material facts and it is entitled to summary
judgment as a matter of law. But when there is a constitutionally based exception to
sovereign immunity—as there is here—that should be the end of the analysis when the
appeal is brought under Rule 2(a)(10). With this court’s current approach to sovereign
immunity, the State, unlike any other defendant in Arkansas, gets a free opportunity to
appeal the denial of summary judgment beyond what Rule 2(a)(10) contemplates.
For BAS’s federal claims, Haywood v. Drown prohibits this court from kicking them
solely because of sovereign immunity. In Haywood, the Supreme Court held that states
cannot “shut the courthouse door to federal claims that [they] consider[] at odds with [their]
local policy”—i.e., article 5, section 20.7 According to the Supreme Court, this “invocation
of ‘jurisdiction’ as a trump” to end federal claims in state court is unconstitutional under the
Supremacy Clause.8 Under a proper reading of article 5, section 20, this is exactly what
sovereign immunity does to BAS’s federal claims.9 Because of Haywood, Land is not entitled
to claim sovereign immunity as a shield from BAS’s federal claims at this stage. As with the
6 Ark. Const. art. 2, § 22 (emphasis added). 7 Haywood, 556 U.S. at 740. 8 Id. at 741. 9 See League of Women Voters of Ark., 2022 Ark. 32, at 17, 639 S.W.3d at 327 (Womack, J., dissenting).
21 state claims, however, Land may eventually prevail on summary judgment if there are no
disputed material facts, and he is entitled to judgment as a matter of law. But, if the circuit
court denies such a motion, then Land must go to trial—as would be the case with any
other defendant.
For these reasons, I respectfully dissent and would affirm the circuit court’s order.
Tim Griffin, Att’y Gen., by: Lisa Wiedower, Ass’t Att’y Gen.; and Julius J. Gerard, Ass’t
Att’y Gen., for appellant.
Quattlebaum, Grooms & Tull PLLC, by: Joseph R. Falasco and Laura L. O’Hara, for
appellee BAS, LLC.
Bryan E. Hosto, for appellee Banyan Capital Investments, LLC.
Stephen Whitwell, for appellee Parcel Strategies, LLC.
Francis J. “Frank” Cardis, for appellees Parcel Strategies, LLC; and Banyan Capital
Investments, LLC.