Arkansas Attorney’s Fees

Anthony Sanders · December 9, 2022

Earlier this year I blogged about Arkansas’s emphatic constitutional language that “The State of Arkansas shall never be made defendant in any of her courts.” I also discussed how that does not necessarily mean that officers of the state cannot be sued, in keeping with the long-established distinction between the “sovereign” and its subordinates.

Last week Arkansas’ sovereign immunity arose again in its supreme court in a dispute about attorney’s fees and highway funding. The case, Gibson v. Buonauito, was up at the court for the second time, and this go-around it was simply on whether the plaintiffs could get attorney’s fees. “Simply” isn’t an apt description, however, because there were over eighteen million dollars worth of them at issue.

Gibson was a challenge to the state’s spending of a certain category of highway money on, argued the plaintiffs, the wrong kind of highway. The earmarked funds were supposed to be for four lane highways, but well over one hundred million dollars was illegally spent on six lane highways. A group of taxpayers challenged that spending, and won. With this victory in hand, the plaintiffs then moved for attorney’s fees, and were awarded over eighteen million dollars in the trial court.

The various government defendants—all of whom were connected with state government, not units of local government—appealed and argued both that the award was inappropriately given under the relevant legal standards (the “substantial benefit” and “common fund” doctrines), and that they weren’t due at all under sovereign immunity. A plurality of justices ruled in the government’s favor under variants of the first theory, essentially that there wasn’t a big enough change in spending to warrant an attorney’s fees award. (Although the numbers were big, the state had plenty of other, unrestricted, money, so complying with the judgment was just an accounting exercise.)

A concurring justice, however, stated that this shouldn’t be allowed under state sovereign immunity. The most interesting point he made is that the Arkansas Constitution does make an allowance for suing local units of government, but not the state itself. Article 16, Section 13 of the constitution states “Any citizen of any county, city or town may institute suit, in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.” This is essentially a taxpayer-standing grant, and would allow for all kinds of lawsuits against local governments misspending money. But it’s quite telling, he argued, that the word “state” or its equivalents are left out. The legislature has allowed for attorney’s fees under this provision but, again, has also not included state government in that legislation. To the concurrence this meant there’s no grounds for attorney’s fees in suits against the state or its officials.

No justice dug into the issues I raised in my prior post, about the distinction between the state and officials of the state. But the ruling is a reminder of how state constitutions sometimes try and limit immunities of different units of government in different ways.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.