Amendment 33 Enforcement: Safeguarding Constitutional Boards’ Powers Against Usurpation

Introduction

The Supreme Court of Arkansas’s decision in Sarah Sanders et al. v. Arkansas Board of Corrections et al., 2025 Ark. 102, confronts a clash between the constitutional autonomy of a statutorily created board and recent legislative enactments—Acts 185 and 659 of 2023—that restructured the reporting relationships within the Department of Corrections. Appellants Governor Sarah Sanders, Secretary Lindsay Wallace (formerly Joe Profiri) and the Arkansas Department of Corrections argued that Amendment 33 of the Arkansas Constitution does not protect the Board’s power to appoint or remove its subordinate officers. The Board of Corrections and its chairman, Benny Magness, contended that the Challenged Legislation violated their vested constitutional authority and sought declaratory and injunctive relief. On interlocutory appeal from a Pulaski County Circuit Court order granting a preliminary injunction, the Supreme Court of Arkansas had to decide three threshold questions:

Is the dispute moot now that the former Secretary Profiri has been removed?
Should the Board’s special counsel be disqualified for purportedly unlawful hiring procedures?
Did the Board demonstrate irreparable harm sufficient to justify a preliminary injunction?

Summary of the Judgment

On June 5, 2025, Chief Justice Baker delivered the majority opinion, holding:

Mootness: The controversy is not rendered moot by the removal of Secretary Profiri because the core dispute over the constitutionality of Acts 185 and 659—and the Board’s control over the Secretary and division directors—remains live.
Disqualification of Counsel: Denied. As a matter of statutory interpretation, the Board qualifies as a “constitutional officer” under Ark. Code Ann. § 25-16-711, and thus had authority to hire special outside counsel without prior approval under § 25-16-702.
Preliminary Injunction: Affirmed. The Board demonstrated both a likelihood of success on the merits and irreparable harm absent injunctive relief. The circuit court’s factual findings were not clearly erroneous, and it did not abuse its discretion in preserving the status quo.

Analysis

Precedents Cited

Lott v. Langley (2013 Ark. 247): Mootness doctrine prevents advisory opinions.
Allison v. Lee County Election Commission (359 Ark. 388): Cases become moot when no practical effect remains.
Baptist Health v. Murphy (365 Ark. 115): Standards for preliminary injunction—irreparable harm and likelihood of success.
United Food & Commercial Workers Int’l Union v. Wal-Mart Stores (353 Ark. 902): Irreparable harm is the “touchstone” of injunctive relief.
Wilson v. Pulaski Association of Classroom Teachers (330 Ark. 298): Irreparable harm must not be compensable by money damages.
AJ&K Operating Co. v. Smith (355 Ark. 510): Redressability requirement for injunctions.
Clark v. Clark (319 Ark. 193): Order denying disqualification of counsel is not appealable.
Villines v. Harris (340 Ark. 319): Scope of interlocutory appeal from injunction.

Legal Reasoning

The Court’s analysis unfolded in three stages:

Mootness: Applying Lott and Allison, the Court found that the removal of Secretary Profiri did not moot the Board’s claim because the disputed legislative provisions continue to govern the Secretary’s tenure and reporting structure—regardless of who holds office.
Authority to Retain Special Counsel: Interpreting Ark. Code Ann. §§ 25-16-702 and 25-16-711, the Court concluded the Board is a “constitutional officer” under § 25-16-711, thereby exempting it from the requirements of § 25-16-702 and validating its retention of counsel.
Preliminary Injunction Standards: Under Baptist Health, the Board had to show irreparable harm and likelihood of success. The Court accepted the circuit court’s factual findings—namely that allowing the new reporting structure to take effect would disrupt the management of over 17,000 inmates, compromise public safety, and impair the Board’s constitutional prerogatives. Because such harms cannot be remedied by damages later, an injunction was proper.

Impact

This decision reinforces and clarifies several important principles:

Constitutional boards enjoy protected, “vested” powers under Amendment 33 that cannot be unilaterally altered by statute without violating separation-of-powers principles.
Such boards may seek injunctive relief to preserve their autonomy in the face of legislative or executive encroachments.
Statutes authorizing constitutional entities to hire special counsel (Ark. Code Ann. § 25-16-711) will be construed broadly to avoid impeding those entities’ independent functions.
Appellate courts will not interpret mootness narrowly to allow parties to evade constitutional questions by jettisoning individual officeholders.

Complex Concepts Simplified

Irreparable Harm: Harm that cannot be fully fixed by money—like lost constitutional authority or damage to public‐safety operations.
Mootness: A case becomes moot if events remove the real controversy; here, the underlying statutory scheme remained unchanged.
Ultra Vires: A government actor exceeding its legal authority; the Board alleged Acts 185 and 659 were ultra vires under Amendment 33.
Preliminary Injunction: A temporary court order to preserve the status quo until final resolution; requires showing likely success and irreparable harm.
Special Counsel Statutes: Arkansas law distinguishes between routine lawsuits (handled by the Attorney General) and extraordinary cases where constitutional officers can retain outside counsel under § 25-16-711.

Conclusion

The Supreme Court of Arkansas’s decision in 2025 Ark. 102 underscores the inviolability of constitutional boards’ vested powers against legislative or executive usurpation. By affirming the preliminary injunction, the Court has signaled its willingness to safeguard Amendment 33’s grant of autonomy, even on an interlocutory basis. The ruling clarifies that (1) the mere removal of an officeholder will not moot a challenge to a statutory scheme, (2) constitutional entities may independently hire special counsel, and (3) injunctive relief remains an essential tool to prevent irreparable harm to constitutionally protected structures. Future litigants will look to this precedent when confronting legislative revisions that intrude upon the self-governance of Arkansas’s constitutionally created boards.