{ "id": 3489755, "name": "Richard WEISS, Director, Arkansas Department of Finance and Administration; Steve Dozier, Director, Department of Arkansas State Police; Gail H. Stone, Executive Secretary, Arkansas State Police Retirement System; Steve Smith, Steve Dozier, Tim Carter, W.H. McWhirter, Blake Wilson, David Rosegrant, George B. Harp, Trustees, Arkansas State Police Retirement System v. Roger McLEMORE, Charles McLemore, and Mike Hall, Individually and on Behalf of a Class Consisting of Members of the Arkansas State Police Retirement System", "name_abbreviation": "Weiss v. McLemore", "decision_date": "2007-11-29", "docket_number": "07-12", "first_page": "538", "last_page": "544", "citations": [ { "type": "official", "cite": "371 Ark. 538" }, { "type": "parallel", "cite": "268 S.W.3d 897" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 12-8-209", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1995, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 9-27-332", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1993, "pin_cites": [ { "page": "(1)" }, { "page": "533" } ], "opinion_index": 0 }, { "cite": "333 Ark. 516", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 703775 ], "weight": 8, "year": 1998, "pin_cites": [ { "page": "531" }, { "page": "232" }, { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/ark/333/0516-01" ] }, { "cite": "Ark. Code Ann. \u00a7 26-18-507", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1992, "pin_cites": [ { "page": "(e)(3)" } ], "opinion_index": 0 }, { "cite": "326 Ark. 495", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12023251 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/326/0495-01" ] }, { "cite": "942 S.W.2d 804", "category": "reporters:state_regional", "reporter": "S.W.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "806" } ], "opinion_index": 0 }, { "cite": "325 Ark. 341", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369154 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "347" } ], "opinion_index": 0, "case_paths": [ "/ark/325/0341-01" ] }, { "cite": "330 Ark. 338", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298542 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/330/0338-01" ] }, { "cite": "118 S.W.2d 235", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1938, "opinion_index": 0 }, { "cite": "196 Ark. 331", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1462435 ], "year": 1938, "pin_cites": [ { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/ark/196/0331-01" ] }, { "cite": "336 Ark. 34", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 51323 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/336/0034-01" ] }, { "cite": "340 Ark. 233", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1365144 ], "weight": 4, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/340/0233-01" ] }, { "cite": "301 Ark. 451", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1885540 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/301/0451-01" ] }, { "cite": "328 Ark. 255", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50395 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/328/0255-01" ] }, { "cite": "335 Ark. 534", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 862788 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/335/0534-01" ] }, { "cite": "366 Ark. 277", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3656804 ], "weight": 2, "year": 2006, "opinion_index": 0, "case_paths": [ "/ark/366/0277-01" ] }, { "cite": "369 Ark. 282", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 4017176 ], "weight": 2, "year": 2007, "opinion_index": 0, "case_paths": [ "/ark/369/0282-01" ] }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 3, "opinion_index": 0 } ], "analysis": { "cardinality": 754, "char_count": 15594, "ocr_confidence": 0.79, "pagerank": { "raw": 2.6362237528708526e-07, "percentile": 0.8226663021666514 }, "sha256": "03a608b53b588d068046e0dda1ab1ea3b5fc7410073c2747aaec8dab57b92f23", "simhash": "1:af5752fc47bf3574", "word_count": 2540 }, "last_updated": "2023-07-14T22:33:16.265391+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Richard WEISS, Director, Arkansas Department of Finance and Administration; Steve Dozier, Director, Department of Arkansas State Police; Gail H. Stone, Executive Secretary, Arkansas State Police Retirement System; Steve Smith, Steve Dozier, Tim Carter, W.H. McWhirter, Blake Wilson, David Rosegrant, George B. Harp, Trustees, Arkansas State Police Retirement System v. Roger McLEMORE, Charles McLemore, and Mike Hall, Individually and on Behalf of a Class Consisting of Members of the Arkansas State Police Retirement System" ], "opinions": [ { "text": "Tom Glaze, Justice.\nThis appeal questions whether Ark. tice. 24-6-205 (Repl. 2000) evidences an intent on the part of the General Assembly to waive the State\u2019s sovereign immunity. The underlying lawsuit began in 2005, when several Arkansas State Police officers filed suit against the State alleging that the Arkansas State Police Retirement System (ASPRS or \u201cRetirement System\u201d) had been systematically underfunded.\nThe plaintiff officers in this case were active and retired \u201cTier I\u201d members of the Retirement System. The defendants \u2014 now Appellants \u2014 are Richard Weiss, the Director of the Arkansas Department of Finance & Administration; Steve Dozier, the Director of the Arkansas State Police; Gail H. Stone, the Executive Secretary of the Arkansas State Police Retirement System; and Steve Smith, Steve Dozier, Tim Carter, W.H. McWhirter, Blake Wilson, David Rosegrant, and George B. Harp, Trustees of the Arkansas State Police Retirement System. Collectively, the Appellants are referred to as \u201cthe State.\u201d\nFor many years, State Police officers received allowances for their uniforms and travel. These allowances came in the form of additional payments, received at the same time as every other paycheck, of $125.00 for \u201cexpenses\u201d and $166.66 for a \u201cclothing allowance.\u201d The total of these additional payments was $3,500 per year. Until 1992, this additional $3,500 per year for \u201cexpenses\u201d and \u201cclothing allowances\u201d was not included on the W-2 forms issued by the Department of Finance & Administration. Beginning in 1992, apparently upon inquiry from the Internal Revenue Service, this additional sum was included on the officers\u2019 W-2 forms. However, even after the $3,500 began being reported as taxable income, that sum was not included when calculating each officer\u2019s contributions to the ASPRS.\nPursuant to Act 1071 of 1997, the Department of State Police\u2019s contributions to the Retirement System was a sum equal to 22% of \u201cactive member payroll,\u201d although that term was not defined by the Act. Between 1997 and 2003, the Retirement System was funded based on the 22% formula, but those calculations did not take into account the $3,500 per year that the officers were receiving for expenses and clothing allowances.\nAct 1609 of 2003 provided for a one-time annual salary adjustment of $3,500 for commissioned officers. Following passage of Act 1609, the State began to include the additional $3,500 as \u201cactive member payroll\u201d for purposes of funding the Retirement System. In addition, the $3,500 began to be included in calculating retiring officers\u2019 final average compensation. It was apparently this change in the funding calculations that constituted the impetus for the instant lawsuit.\nIn November of 2005, the officers filed their class-action lawsuit, contending that the various state defendants had violated the law by failing to properly fund the ASPRS between 1992 and 2003. The officers also alleged that the improper funding of the retirement system constituted an illegal exaction and an impairment of contractual obligations in violation of Ark. Const, art. 2, \u00a7 17. Their complaint sought a writ of mandamus directing the State to \u201cimmediately correct the records of all class members individually and the ASPRS as a system[.]\u201d In addition, the officers\u2019 complaint asked for a declaratory judgment to the effect that \u201cthe current method of calculation of [the plaintiffs\u2019] retirement benefits by [the State] is in violation of statutory intent and is in breach of plaintiffs\u2019 contract with [the State].\u201d\nThe State filed a motion to dismiss on December 27, 2005, in which it asserted that the officers\u2019 claims were barred by sovereign immunity. In addition, the State asserted that the officers had failed to state claims for an illegal exaction or a breach of contract.\nOn January 5, 2006, the officers responded to the State by filing an amended complaint in which they asserted a new cause of action based on 42 U.S.C. \u00a7 1983. In essence, the officers contended that, by failing to properly fund the ASPRS, the State had deprived them of their property without just compensation.\nThe trial court considered the matter solely on the pleadings and entered an order on September 5, 2006. In that order, the court found that the officers had failed to state a claim for an illegal exaction; however, the court did find that the complaint adequately set out a claim for breach of contract. Regarding the State\u2019s sovereign immunity argument, the trial court found that \u00a7 24-6-205 provided \u201ca limited waiver of sovereign immunity.\u201d Finally, the court agreed with the State that the plaintiffs had failed to state a claim pursuant to 42 U.S.C. \u00a7 1983, and it dismissed that claim. The State filed a timely notice of appeal on October 3, 2006, and now raises three arguments for reversal in this interlocutory appeal.\nIn this appeal, we are asked to interpret \u00a7 24-6-205 and decide whether that statute provides a limited waiver of sovereign immunity. We review issues of both statutory construction and constitutional interpretation de novo. See Weiss v. Maples, 369 Ark. 282, 253 S.W.3d 907 (2007); Harris v. City of Fort Smith, 366 Ark. 277, 234 S.W.3d 875 (2006). On review of an issue of statutory interpretation, we are not bound by the decision of the trial court; however, in an absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. See Bryant v. Weiss, 335 Ark. 534, 983 S.W.2d 902 (1998).\nIn its primary point on appeal, the State contends that the officers\u2019 suit is one against the State, and it is therefore barred by article 5, \u00a7 20 of the Arkansas Constitution, which provides that \u201c[t]he State of Arkansas shall never be made defendant in any of her courts.\u201d This court has consistently interpreted this constitutional provision as a general prohibition against awards of money damages in lawsuits against the state and its institutions. See, e.g., Cross v. Arkansas Livestock & Poultry Comm\u2019n, 328 Ark. 255, 943 S.W.2d 230 (1997); Fireman\u2019s Ins. Co. v. Arkansas State Claims Comm\u2019n, 301 Ark. 451, 784 S.W.2d 771 (1990). We have held that this constitutional prohibition is not merely declaratory that the state could not be sued without her consent, but that all suits against the state were expressly forbidden. Ark. Pub. Defender Comm\u2019n. v. Burnett, 340 Ark. 233, 12 S.W.3d 191 (2000); Brown v. Arkansas State HVACR Lic. Bd., 336 Ark. 34, 984 S.W.2d 402 (1999); Page v. McKinley, 196 Ark. 331, 336, 118 S.W.2d 235 (1938). Where the pleadings show that the action is, in effect, one against the state, the trial court acquires no jurisdiction. Burnett, supra.\nThe doctrine of sovereign immunity is rigid and may only be waived in limited circumstances. Office of Child Support Enforcement v. Mitchell, 330 Ark. 338, 954 S.W.2d 907 (1997). This court has recognized only two ways in which a claim of sovereign immunity may be surmounted: (1) where the state is the moving party seeking specific relief; and (2) where an act of the legislature has created a specific waiver of immunity. Id.; see also Burnett, supra.\nThe issue in this case is whether \u00a7 24-6-205 provides such a waiver. That statute provides as follows:\n(a) Should any change or error in the records of the State Police Retirement System or the Department of Arkansas State Police result in any person\u2019s receiving from the system more or less than he would have been entitled to receive had the records been correct, the Board of Trustees of the State Police Retirement System shall correct the error and, as far as is practicable, shall adjust the payment in such manner that the actuarial equivalent of the benefit to which the person was correctly entitled shall be paid.\n(b) The board shall have the right to recover any overpayment any person may have received from funds of the system.\n(Emphasis added.)\nAs mentioned above, the trial court found that this statute provided a limited waiver of the State\u2019s sovereign immunity. On appeal, the State urges that, while this court has recognized legislative waivers of sovereign immunity, it has only done so when the waiver is express. For example, the State cites Arkansas Department of Finance & Administration v. Staton, 325 Ark. 341, 942 S.W.2d 804 (1996), and State v. Tedder, 326 Ark. 495, 932 S.W.2d 755 (1996), in which this court found an express legislative waiver of sovereign immunity in Ark. Code Ann. \u00a7 26-18-507(e)(3) (Supp. 1992). That statute specifically provides that a taxpayer may seek judicial relief in the face of improperly collected sales taxes, provided that a refund has been sought and the request is refused or no response is made by the Arkansas Department of Finance & Administration. In Staton, this court refused to certify a class action against the State where only a single taxpayer had complied with the provisions of \u00a7 26-18-507; however, the court held that, because that sole taxpayer had complied with the statute, the State\u2019s sovereign immunity was waived as to her. Staton, 325 Ark. at 347, 942 S.W.2d at 806. The Tedder court reached a similar conclusion, holding that because the proposed class of taxpayers had not complied with \u00a7 26-18-507, only the named class representative could maintain a suit against the State.\nRelying on these cases, the State contrasts the \u201celaborate scheme\u201d of administrative and judicial remedies established by \u00a7 26-18-507 with the language of \u00a7 24-6-205, which the State claims \u201cprovides no remedial scheme at all.\u201d Because \u00a7 24-6-205 does not provide for judicial remedies similar to those in \u00a7 26-18-507 or expressly declare that the State may be sued pursuant to \u00a7 24-6-205, the State argues that its sovereign immunity has not been waived.\nThe police officers, on the other hand, point to Arkansas Department of Human Services v. R.P., 333 Ark. 516, 970 S.W.2d 225 (1998). In that case, the juvenile court ordered the Department of Human Services (DHS) to provide adequate housing, including electric and water utilities, to a family that had been adjudicated in need of services. On appeal, DHS argued, among other things, that the trial court lacked the authority to order it to restore the family\u2019s utilities. In essence, DHS argued that the court\u2019s order coerced the agency into bearing a financial burden, which DHS contended was barred by sovereign immunity. R.P., 333 Ark. at 531, 970 S.W.2d at 232.\nThis court disagreed, concluding that there was \u201ca waiver of sovereign immunity under the circumstances presented.\u201d Id. The court noted that the General Assembly may create a specific waiver of immunity, and the court concluded that the legislature had done so when it enacted Ark. Code Ann. \u00a7 9-27-332(1) (Repl. 1993), which provided that when a family is found to be in need of services, the court may order family services; among the services the court was empowered to order was the provision of cash assistance. The court held as follows:\nGiven that the trial court is empowered to order family services in FINS cases to prevent a juvenile from being removed from a parent, which by definition includes cash assistance, we conclude that the General Assembly has specifically waived sovereign immunity as to DHS in such instances. Any other interpretation would effectively eviscerate the court\u2019s power to order family services in FINS cases.\nId. at 533, 970 S.W.2d at 233.\nIn the instant case, the pertinent statute, \u00a7 24-6-205, provides that, in the event of an error that results in a State Police retiree from receiving more or less than he or she would have been entitled to receive, the Board of Trustees of the ASPRS \u201cshall correct the error\u201d and \u201cshall adjust the payment\u201d so that the person may be paid correctly. (Emphasis added.) Subsection (b) of the statute gives the Board the right to recover any overpayment an officer may have received from the system. Thus, the Board is specifically empowered to recover any overpayments. Conversely, even though the statute does not spell out the mechanism by which the Board must adjust an erroneous payment, the statute mandates that the Board \u201cshall adjust the payment\u201d and \u201cshall correct the error\u201d that led to the underpayment (or the overpayment, although that is not the situation in this case). From this mandatory language, it can easily be inferred that the legislature intended to waive the State\u2019s sovereign immunity so that an underpaid retiree might sue to have his or her underpayment corrected.\nWe acknowledge the State\u2019s argument that, because \u00a7 24-6-205 granted the Board the right to recover any overpayment to the officers but did not provide a concomitant right for an aggrieved retiree, the General Assembly must not have intended to waive the State\u2019s sovereign immunity. Fiowever, we cannot agree with such a conclusion. To construe \u00a7 24-6-205 in such a way as to preclude State Police retirees from bringing suit to compel the State to \u201ccorrect [its] error\u201d and \u201cadjust the payment\u201d would eviscerate the purpose of the statute. See Ark. Dep\u2019t of Human Servs. v. R.P., supra. Such a consequence could not have been intended by the General Assembly. Id. Accordingly, we hold that \u00a7 24-6-205 constitutes a limited waiver of the State\u2019s sovereign immunity.\nBecause we affirm the trial court on this issue, we need not reach or address the State\u2019s second argument on appeal, wherein it suggests that the officers\u2019 attempt to characterize their suit as one for injunctive and declaratory relief is merely a disguised claim for monetary relief. Because we conclude that sovereign immunity does not bar the officers\u2019 suit, it is irrelevant whether the claims for injunctive and declaratory relief are actually claims for monetary damages.\nAffirmed.\nThe term \u201cTier I\u201d refers to those participants in the Retirement System who were members of the System prior to Act 1071 of 1997, which created a second tier of employees in the Retirement System. Prior to 1997, members of the Retirement System were required to contribute a portion of their income to the ASPRS; after Act 1071, however, contribution was no longer mandatory.\nIn addition, Act 1609 repealed Ark. Code Ann. \u00a7 12-8-209 (Repl. 1995), the statute in which the travel and uniform allowances had previously been codified.\nThe State initially raised a third point on appeal, wherein it suggested that the officers\u2019 claims for monetary, retroactive relief pursuant to 42 U.S.C. \u00a7 1983 are also barred by sovereign immunity. However, the trial court dismissed the officers\u2019 \u00a7 1983 claims because \u00a7 1983 protects only federal rights, and the officers claimed rights under Arkansas law. In its reply brief, the State withdraws its argument, conceding that the trial court dismissed this claim and stating that it \u201cdo[es] not challenge the circuit court\u2019s decision on this issue.\u201d", "type": "majority", "author": "Tom Glaze, Justice." } ], "attorneys": [ "Dustin McDaniel, Att\u2019y Gen., by: Patricia Van Ausdall Bell, Ass\u2019t Att\u2019y Gen., for appellant.", "Newell & Hargraves, by: C. Burt Newell, for appellees." ], "corrections": "", "head_matter": "Richard WEISS, Director, Arkansas Department of Finance and Administration; Steve Dozier, Director, Department of Arkansas State Police; Gail H. Stone, Executive Secretary, Arkansas State Police Retirement System; Steve Smith, Steve Dozier, Tim Carter, W.H. McWhirter, Blake Wilson, David Rosegrant, George B. Harp, Trustees, Arkansas State Police Retirement System v. Roger McLEMORE, Charles McLemore, and Mike Hall, Individually and on Behalf of a Class Consisting of Members of the Arkansas State Police Retirement System\n07-12\n268 S.W.3d 897\nSupreme Court of Arkansas\nOpinion delivered November 29, 2007\nDustin McDaniel, Att\u2019y Gen., by: Patricia Van Ausdall Bell, Ass\u2019t Att\u2019y Gen., for appellant.\nNewell & Hargraves, by: C. Burt Newell, for appellees." }, "file_name": "0538-01", "first_page_order": 564, "last_page_order": 570 }