“Reasonably Calculated” Notice and USPS Tracking in Tax Sales: Land v. BAS, 2025 Ark. 107, and the Limits of the Unconstitutional‑Act Exception to Sovereign Immunity

I. Introduction

The Arkansas Supreme Court’s decision in Tommy Land, Commissioner of State Lands v. BAS, LLC, 2025 Ark. 107, is a significant modern restatement of what constitutes constitutionally adequate notice in tax-delinquency sales and how that interacts with Arkansas’s sovereign immunity doctrine.

The core dispute is narrow but important: when the Commissioner of State Lands sends certified-mail notice to the property owner’s “last known address,” does not receive the physical return receipt, but obtains USPS tracking data showing delivery, has the State done enough under the Due Process Clause before selling the property for unpaid taxes?

The majority answers yes. It holds that:

• Certified mail to the last known address, confirmed as “delivered” by USPS tracking, is constitutionally sufficient notice, even if the physical “green card” return receipt never comes back; and
• Because the notice satisfied due process, the owner has not identified any illegal or unconstitutional act that can pierce Arkansas’s sovereign immunity. The Commissioner is entitled to summary judgment.

In reaching this result, the Court clarifies:

• How Mullane, Mennonite, Dusenbery, and especially Jones v. Flowers apply to Arkansas tax sales;
• That a tax-delinquency sale to recover unpaid taxes—when proper notice is given—is not a “taking” triggering just compensation under either the federal or Arkansas Takings Clauses; and
• That the “unconstitutional or illegal acts” exception to sovereign immunity in Arkansas remains tightly tied to the merits of the constitutional claim—if the claim fails on the merits, immunity is not overcome.

The decision also exposes deep fractures within the Court over sovereign immunity and federal claims: three Justices write separately, advancing sharply different views on how article 5, section 20 interacts with Arkansas’s Takings Clause (art. 2, § 22) and the U.S. Constitution’s Supremacy Clause.

II. Factual and Procedural Background

A. The Property and Addresses

• In October 2016, BAS, LLC, a California company, bought commercial property in Paragould, Arkansas.
• The recorded deed listed BAS’s mailing address as: 3735 Winford Drive, Tarzana, California.
• One of BAS’s two members, Gary Solnit, briefly lived at that Tarzana address. However, BAS’s business operations were actually conducted from a different address in Beverly Hills, California.
• Solnit asked the title company to update the deed to the Beverly Hills address. That change never occurred.
• BAS also failed to comply with Arkansas law requiring the owner to register its mailing address with the county. See Ark. Code Ann. § 26‑35‑705.

B. Delinquent Taxes and Certification to the Commissioner

• BAS did not pay property taxes for 2017 and 2018.
• The Greene County Clerk certified the property to the Commissioner of State Lands for nonpayment, triggering the tax-delinquency process.

C. The Commissioner’s Notice Efforts

1. August 17, 2021 mailing to Tarzana (primary notice)
   • As required by Ark. Code Ann. § 26‑37‑301, the Commissioner mailed notice by certified mail to “the owner’s last known address” — the Tarzana address on the deed.
   • The Commissioner requested a return receipt (signature) even though the statute does not require it.
   • Because of COVID-19, USPS had relaxed signature requirements for certified mail.
   • The Commissioner never received the physical return receipt.
   • He checked USPS tracking, which reported the notice was “Delivered” to a front desk, reception area, or mailroom at the Tarzana address at 1:02 p.m. on August 24, 2021.
   • He did not further investigate whether this residential Tarzana address actually had a front desk or mailroom.
2. June 2022 mailing to the Arkansas property
   • The Commissioner sent an additional certified-mail notice to the Paragould property address.
   • This second mailing was returned undelivered.
   • BAS did not rely on this second mailing as creating a due process problem—it argued instead that the first mailing had already failed to satisfy due process.

D. The Tax Sale and Subsequent Litigation

• With no response from BAS, the Commissioner proceeded to sell the property on August 2, 2022.
• Third-party purchasers bought the property and, about two months later, filed a quiet-title action.
• BAS responded by filing a separate lawsuit against the Commissioner (in his official capacity), contesting the tax sale within the 90-day statutory window for challenges. See Ark. Code Ann. § 26‑37‑203.
• BAS sought an injunction compelling the Commissioner to set aside the sale under Ark. Code Ann. § 26‑37‑204, which requires the Commissioner to set aside a sale if the “interested parties did not receive the required notice.”

E. BAS’s Claims

BAS framed its case in three overlapping constitutional theories:

1. Federal and state due process
   • The Commissioner supposedly violated BAS’s procedural due process rights under the Fourteenth Amendment and the Arkansas Constitution by conducting a tax sale without providing constitutionally adequate notice.
2. Federal and state takings
   • BAS claimed that selling its property without proper notice amounted to an unconstitutional taking under the Fifth Amendment (as applied to the states) and under Ark. Const. art. 2, § 22.
   • At oral argument, BAS relied heavily on Jones v. Flowers, arguing that a tax sale without adequate notice is a “taking.”
3. Supremacy Clause overlay
   • BAS further argued that the federal Supremacy Clause required Arkansas courts to hear its federal claims, notwithstanding state sovereign immunity.

F. Procedural Posture in the Supreme Court

• The Commissioner moved for summary judgment in circuit court, asserting sovereign immunity barred all claims because no valid constitutional violation had been pleaded or proven.
• The circuit court denied the motion, reasoning that fact issues remained regarding whether the Commissioner’s notice efforts satisfied due process, making it premature to decide sovereign immunity.
• The Commissioner brought an interlocutory appeal under Ark. R. App. P.–Civ. 2(a)(10), which allows immediate appeals of orders denying summary judgment on sovereign immunity grounds.
• The Arkansas Supreme Court reversed, holding that:
  • there were no genuine disputes of material fact, and
  • on those undisputed facts, the Commissioner’s notice satisfied due process as a matter of law.

III. Summary of the Opinion

Majority holding (Justice Bronni):

1. No due process violation The Commissioner’s August 2021 certified-mail notice to BAS’s Tarzana address—listed on the recorded deed and confirmed as “delivered” by USPS tracking—was “reasonably calculated, under all the circumstances” to notify BAS of the pending tax sale, as required by the Due Process Clause. No additional steps were constitutionally required.
2. No taking Because notice was constitutionally adequate, BAS’s attempt to recast the same theory as a “taking” under the Fifth Amendment and the Arkansas Takings Clause necessarily fails. Moreover, Jones v. Flowers was a procedural due process case, not a takings decision, and traditional doctrine treats tax sales for unpaid taxes as an exercise of the taxing power, not the eminent domain power.
3. Sovereign immunity applies Arkansas’s unconstitutional/illegal-act exception to sovereign immunity applies only when a plaintiff asserts a valid claim that actually identifies an unconstitutional or illegal state action. Because BAS’s due process and takings claims fail on the merits, BAS has not overcome sovereign immunity. The Commissioner is entitled to summary judgment in his official capacity.
4. Supremacy Clause does not save meritless federal claims The Supremacy Clause does not require Arkansas courts to entertain federal claims that fail on their merits. Arkansas has not denied BAS a “clear and certain” remedy for a federal violation; there simply was no federal constitutional violation.

Accordingly, the Court reversed the circuit court’s denial of summary judgment and held that BAS’s claims are barred by sovereign immunity because they identify no illegal or unconstitutional act.

Separate opinions:

• Chief Justice Baker concurred in part and dissented in part:
  • She would dismiss all state-law claims outright under Andrews’s strict reading (“never means never”) of article 5, section 20, without resort to any “unconstitutional-act” exception.
  • However, she agreed that sovereign immunity cannot bar federal claims; she believed those should proceed in light of factual disputes.
• Justice Hudson dissented:
  • She would affirm the denial of summary judgment, concluding that unresolved factual issues and reasonable inferences (especially regarding the missing return receipt and COVID-era USPS procedures) preclude resolving due process and sovereign immunity at the summary judgment stage.
• Justice Womack dissented:
  • He criticized the Court’s existing sovereign immunity jurisprudence as “messy.”
  • He argued that article 2, section 22 (Arkansas Takings Clause) is an express constitutional exception to sovereign immunity: the right of property is “before and higher than any constitutional sanction,” including art. 5, § 20.
  • He also concluded that, under Haywood v. Drown, Arkansas courts cannot use sovereign immunity to block federal claims like BAS’s.
  • On that view, Land was not entitled to summary judgment on immunity grounds at this stage.

IV. Detailed Analysis

A. Sovereign Immunity Framework in Arkansas

1. Constitutional provision and baseline rule

Arkansas’s sovereign immunity clause is unusually categorical:

“The State of Arkansas shall never be made defendant in any of her courts.” — Ark. Const. art. 5, § 20

This provision bars suits against:

• the State directly, and
• state officials sued in their official capacity, because those actions are essentially suits against the State itself. See Ark. Dep’t of Fin. & Admin. v. Lewis, 2021 Ark. 213; Bd. of Trs. of Univ. of Ark. v. Andrews, 2018 Ark. 12.

The majority in Andrews emphasized the absolutist language—“never means never”—and rejected the idea that the General Assembly could statutorily waive sovereign immunity.

2. The unconstitutional/illegal/ultra vires act exception

Despite the text of article 5, section 20, the Court in recent years has recognized a narrow exception: suits for declaratory or injunctive relief against state officials are permitted when they allege and can prove that the official is acting:

• unconstitutionally,
• illegally, or
• ultra vires (beyond statutory authority).

The Land majority cites this line of cases:

• Osage Creek Cultivation, LLC v. Ark. Dep’t of Fin. & Admin., 2023 Ark. 47
• Brizendine v. Dep’t of Human Servs., 2025 Ark. 34 (fact-pleading requirements apply even when invoking the exception)
• Lewis, 2021 Ark. 213 (suit against officials in official capacity is suit against the State)
• Williams v. McCoy, 2018 Ark. 17 (a plaintiff must plead facts that, if proven, show a due process violation to invoke the exception)
• Chaney v. Union Producing, LLC, 2020 Ark. 388 (if a plaintiff fails to show such a violation, sovereign immunity bars the claim).

In other words, the exception is not triggered merely by alleging a constitutional violation; the plaintiff must plead, and ultimately prove, facts that actually constitute such a violation.

3. The Land majority’s refinement: merits and immunity are intertwined

The Land Court pushes this doctrine further. It treats the availability of the unconstitutional-act exception as directly dependent on the ultimate merits determination:

• If, after reviewing the undisputed facts (at summary judgment), the Court concludes that no due process violation occurred, then:
  • no “illegal or unconstitutional act” has been shown;
  • the exception to sovereign immunity does not apply; and
  • the suit against the Commissioner in his official capacity is barred.

This approach effectively makes state sovereign immunity in such official-capacity cases rise and fall with the ultimate constitutional merits: if the plaintiff loses on the merits, immunity is “retroactively” determined to have applied all along.

Justice Hudson’s dissent is particularly critical of this approach, arguing that it lets the Court resolve merits controversies through an interlocutory immunity appeal and undercuts the usual summary judgment standard (all inferences to the nonmovant).

B. Due Process and Tax-Sale Notice

1. Governing federal standard

The opinion rests on familiar U.S. Supreme Court precedents:

• Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)
• Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983)
• Dusenbery v. United States, 534 U.S. 161 (2002)
• Jones v. Flowers, 547 U.S. 220 (2006)

These cases collectively establish that:

1. Due process requires notice and an opportunity to be heard before deprivation of property. This applies squarely to tax-delinquency sales. See Dusenbery; Jones.
2. Actual notice is not required. Due process does not demand that the owner actually receive notice; it demands procedures “reasonably calculated” to convey it. See Jones, Dusenbery.
3. The key test is the Mullane standard:

   “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.” — Mullane, 339 U.S. at 314, quoted in Jones

4. Ma iled notice is generally adequate, but not when the government knows or has “good reason to suspect” that it failed.
   • Ordinarily, mailed notice to a reasonably ascertainable address is constitutionally sufficient. See Mennonite, Dusenbery.
   • However, when the government learns that the mailed notice did not reach the owner—for example, the letter is returned unclaimed—it must take “further reasonable steps” if such steps are available. See Jones.
   • Due process requires the government to behave “as one desirous of actually informing” the property owner. See Mullane, 339 U.S. at 315; Jones, 547 U.S. at 229–30.
5. Due process does not require “heroic efforts.” The State need not exhaust every conceivable method; it must act reasonably, not perfectly. See Dusenbery, 534 U.S. at 170–71.

2. How the majority applies Jones v. Flowers

Jones itself involved Arkansas’s Commissioner of State Lands. There, certified-mail notice was sent to the owner’s last known address, but the letter was returned “unclaimed.” The Commissioner, knowing that the attempt had failed, did nothing further and proceeded with the sale. The U.S. Supreme Court held that due process required additional steps because the Commissioner was now “no better off than if the notice had never been sent.”

In Land v. BAS, BAS argued that:

• The absence of a physical return receipt,
• the fact that USPS tracking referred to delivery to a “front desk, reception area or mailroom,” and
• the likelihood that the Tarzana address was residential and had no such facility

should have alerted the Commissioner that there was a problem, triggering a Jones-style duty to undertake additional steps.

The Court rejects this analogy, drawing a sharp distinction between:

• a returned letter (as in Jones), which definitively shows that notice failed, and
• a missing return receipt, which may mean only that the “green card” went astray, not that the underlying notice never reached its destination.

The majority notes that the Commissioner did exactly what a reasonable person would do in the face of a missing green card:

• He checked the USPS tracking system, which showed the letter as delivered to the Tarzana address.
• He had no contrary information undercutting that official tracking data.
• He did not know that the Tarzana address lacked a front desk or mailroom, and due process did not require him to investigate the building’s physical layout.

Therefore, unlike in Jones, the State was not on notice that its attempt had failed, and no duty to take further measures arose.

3. Role of the owner’s failure to update its address

A subtle but important element in the majority’s fairness calculus is BAS’s own conduct:

• BAS allowed a Tarzana address to be recorded on the deed,
• failed to ensure that the deed was corrected to the Beverly Hills address, and
• violated Ark. Code Ann. § 26‑35‑705 by failing to register its mailing address with the county as required by state law.

The Commissioner, by contrast, simply relied on the address in the public records. The Court emphasizes that nothing in the record suggests the Commissioner had reason to suspect that address was inaccurate. Under Mennonite, where an interested party’s name and address are “reasonably ascertainable,” mailed notice is “virtually certain” to ensure actual notice, and here the Commissioner used the recorded deed precisely for that reason.

4. Could the Commissioner have done more?

The majority openly concedes that the Commissioner could have taken additional steps:

• Use Google Street View or similar tools to check whether the Tarzana address appeared residential.
• Send multiple notices by different mail methods (certified and regular mail).
• Post notice directly on the Paragould property in Arkansas.
• Contact the California Secretary of State to obtain a more current or formal address for BAS.

The third-party purchasers in the quiet-title action apparently did something like this, and BAS eventually received actual notice of that suit. But the Court reiterates that the Constitution does not require the State to “employ every conceivable means.” The test is reasonableness, not maximality.

Faced with USPS data showing delivery, it would be unreasonable, the Court says, to require additional steps as a matter of federal due process. Thus, the August 2021 mailing was “reasonably certain to inform” BAS under Jones, and the Commissioner’s actions were not a mere “gesture” as condemned in Mullane.

5. Summary judgment and the legal/factual divide

The circuit court viewed the “reasonableness” of the Commissioner’s actions as a factual question for the fact-finder, not suitable for summary judgment.

The Supreme Court disagrees, citing authority (including the Eighth Circuit’s Stauch v. City of Columbia Heights) that due process is ultimately a question of law for the court, once the underlying historical facts are undisputed.

Here, the underlying facts—the sending of the notice, the lack of a return receipt, the USPS tracking entry, and the lack of further investigation—are uncontroverted. What is disputed is whether these facts add up to a constitutional violation, which the majority treats as a pure legal issue suitable for resolution on summary judgment.

Justice Hudson sees this differently, emphasizing that reasonable inferences from these facts—especially regarding whether the Commissioner knew or should have known of a possible delivery failure—should be drawn in BAS’s favor at the summary judgment stage. That disagreement is less about the legal standard than about how robustly to apply the “inferences to the nonmoving party” rule in constitutional cases.

C. The Takings Claim: Tax Sales vs. Eminent Domain

1. BAS’s strategy: re-label due process as a taking

BAS’s takings theory essentially collapses into its due process theory:

• It asserted that when a tax sale is carried out without the constitutionally required notice, the State has “taken” property without just compensation, violating both:
  • the Fifth Amendment Takings Clause, and
  • Arkansas Constitution, art. 2, § 22.
• BAS invoked Jones v. Flowers for the proposition that “before a State may take property,” it must provide adequate notice, and argued that a sale without such notice is itself a “taking.”

2. The Court’s response: Jones is not a Takings case

The majority rejects this move on two levels:

1. First level: no predicate violation Even assuming, arguendo, that an inadequate-notice tax sale might sometimes constitute a “taking,” that logic does not help BAS here, because the Court has already held that notice was adequate. Without a due process violation, there is no unconstitutional taking on BAS’s theory.
2. Second level: doctrinal fit The majority stresses that Jones was explicitly a procedural due process case, not a Takings Clause case. Its occasional use of the word “take” did not convert the analysis into one under the Takings Clause.

3. Tax sales as taxation, not eminent domain

The Court then grounds its rejection of the takings label in longstanding doctrine distinguishing:

• the taxing power (to collect revenue owed), from
• the eminent domain power (to take property for public use with just compensation).

Key authorities:

• Tyler v. Hennepin County, 598 U.S. 631 (2023):
  • Describes tax exactions as “mandated contribution[s] … for the support of the government,” for which owners are “compensated” through the protections and services government provides.
• County of Mobile v. Kimball, 102 U.S. 691 (1881): Classic articulation that taxes are not “takings” in the constitutional sense.
• Armstrong v. United States, 364 U.S. 40 (1960): Takings Clause aim is to prevent the 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.”
• Bagley v. Castile, 42 Ark. 77 (1883):
  • Early Arkansas case distinguishing tax forfeiture from a “deprivation of property” in the sense the Takings Clause forbids.
  • States that Ark. Const. art. 2, § 22 deals with eminent domain, “wholly different in nature from the taxing power.”

On this traditional view, a tax sale is a mechanism to ensure that property owners contribute their fair share to public burdens. It is not, in itself, the type of compelled taking of private property for public use that requires just compensation, provided that:

• the tax is lawfully imposed, and
• due process (including reasonable notice) is afforded.

After Tyler, there is an important caveat: when a government seizes property to collect taxes and then retains surplus value beyond what is owed, that excess may constitute a taking. But that is not the scenario in Land v. BAS; this case involved only an alleged notice failure, not retention of surplus equity.

Consequently, the Court holds that BAS’s attempt to reframe its procedural due process claim as a takings claim falls with the due process claim itself and does not provide a separate avenue for overcoming sovereign immunity.

D. Supremacy Clause and State Sovereign Immunity

1. BAS’s argument

BAS suggested that, whatever article 5, section 20 might say, the Supremacy Clause of the U.S. Constitution forbids Arkansas from using sovereign immunity to block adjudication of federal constitutional claims in its own courts.

2. Majority’s reliance on Alden v. Maine and Reich v. Collins

The Court responds by invoking Alden v. Maine, 527 U.S. 706 (1999), which recognizes:

• States retain immunity from private suits in their own courts as a structural principle embedded in the Constitution and ratification history.
• The plan of the Convention includes limited contexts where States consented to suit (e.g., by the United States or other States), but none of those general exceptions apply here.

The majority also references Reich v. Collins, 513 U.S. 106 (1994), where the Supreme Court held that when a State promises—and then denies—a “clear and certain” remedy for federal tax refunds unlawfully collected, it may not invoke sovereign immunity to escape that remedy. Reich is framed as a narrow exception.

The Land Court reasons that, even if some Reich-type exception could theoretically apply in Arkansas, it would not help BAS here, because:

• Arkansas has not denied BAS a promised remedy for a violation of federal law; rather, it has determined that no federal violation occurred.
• The Supremacy Clause does not compel state courts to entertain federal constitutional claims that lack merit.

To underline the point, the Court cites Howlett v. Rose, 496 U.S. 356 (1990), for the proposition that while States may not create categorical bars to federal causes of action when their courts are otherwise open to analogous state claims, they may apply neutral rules (like pleading standards or summary judgment rules) to federal and state claims alike.

Because Arkansas’s constitutional bar on suits against the State is characterized as a structural jurisdictional limit—rather than a content-based discrimination against federal claims—the majority sees no Supremacy Clause problem in applying it where the plaintiff fails to show a constitutional violation.

3. Tension with Haywood v. Drown (Justice Womack’s view)

Justice Womack reads Haywood v. Drown, 556 U.S. 729 (2009), more aggressively:

• In Haywood, the Supreme Court struck down a New York statute that divested state courts of jurisdiction over federal § 1983 suits against certain state officers, even though the courts retained jurisdiction over similar state-law claims.
• The Court held that State courts of general jurisdiction cannot “shut the courthouse door to federal claims” solely because they disfavor those claims, as that violates the Supremacy Clause.

Justice Womack sees Arkansas’s use of article 5, section 20 to shield state officers from federal constitutional suits analogously: it functions as a categorical policy choice to deprive courts of jurisdiction over federal claims when the State is the defendant, even if analogous claims against private parties are heard. Under his approach, sovereign immunity cannot bar BAS’s federal claims at all, regardless of their ultimate merit.

The majority rejects this framing implicitly, treating Arkansas’s sovereign immunity as a structural attribute of the State’s judicial power, not a disfavored, content-based jurisdictional carve-out targeting federal claims.

E. The Separate Opinions: Competing Visions of Sovereign Immunity

1. Chief Justice Baker: Andrews fully controls state claims; immunity cannot bar federal claims

Chief Justice Baker writes separately to reiterate her longstanding view from her dissent in Andrews and later cases:

• Article 5, section 20 is absolute as to state-law claims: “never means never.”
• Andrews did not carve out any exceptions, and subsequent cases that recognize unconstitutional-act or ultra vires exceptions are inconsistent with that controlling precedent.
• Therefore, in her view, the state-law claims should not be run through a merits analysis; they should simply be dismissed on sovereign immunity grounds.
• However, she agrees that sovereign immunity under the Arkansas Constitution cannot bar federal claims. On that basis, and in line with Justice Hudson’s dissent, she would allow the federal due process claims to proceed, given unresolved factual issues.

2. Justice Hudson: summary judgment is premature; due process is fact-intensive

Justice Hudson does not focus on reworking sovereign immunity doctrine. She accepts the unconstitutional-act exception as articulated in Osage Creek but argues that this case is not yet ripe for applying it to bar suit because:

• Summary judgment standard: When ruling on summary judgment, courts must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party’s favor. See Cannady v. St. Vincent Infirmary, 2018 Ark. 35.
• Due process determinations are fact-intensive: The “reasonableness” of notice under Mullane and Jones depends on “all the circumstances,” making factual nuances crucial.
• Unresolved factual questions: Hudson points to:
  • the lack of the requested signed return receipt,
  • COVID-era USPS protocols (which altered standard certified-mail handling), and
  • ambiguity over how much, if at all, the Commissioner relied on the tracking entry, given that he never obtained the green card,
  as factors that could lead a fact-finder to conclude the Commissioner should have realized his attempt at notice might have failed.

She analogizes to the hypothetical in Jones where a postman drops letters into a storm drain: even though deposit with the postman is ordinarily a reasonable step, knowledge that the letters never left his immediate control would make inaction unreasonable. Here, she suggests, the interplay between missing receipt and unusual COVID delivery procedures could similarly support a finding that the Commissioner knew or should have known of a defect.

On that view, BAS has at least pleaded a potentially unconstitutional act sufficient to overcome sovereign immunity at this preliminary stage, and the Commissioner should not receive summary judgment on immunity grounds.

3. Justice Womack: textualist reset of sovereign immunity, with a built-in Takings exception

Justice Womack calls for a fundamental reset of Arkansas sovereign immunity doctrine, grounded in the text and original meaning of the Constitution:

• He rejects judge-made exceptions like “ultra vires” and “illegal acts” as lacking textual support in article 5, § 20.
• He sees Ex parte Young-style fictions as foreign to the 1874 framers’ understanding.

However, he identifies a different textual source for an exception: the Arkansas Takings Clause, art. 2, § 22:

“The 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.” — Ark. Const. art. 2, § 22

For Womack, this means:

• The right to compensation for a taking is “before and higher” than sovereign immunity itself.
• Therefore, article 2, section 22 is an express, textual exception to article 5, section 20.
• On that basis, sovereign immunity cannot bar BAS’s state takings claim at the threshold.

He further argues that Haywood v. Drown prevents Arkansas from dismissing BAS’s federal claims based solely on sovereign immunity, because doing so is effectively a disfavored policy-based jurisdictional exclusion for federal claims. Consequently, he would allow both state and federal claims to move forward, with immunity not available as a defense at this stage.

V. Simplifying the Key Legal Concepts

1. Sovereign Immunity (Arkansas and generally)

• Concept: The ancient doctrine that “the sovereign” (i.e., the State) cannot be sued without its consent.
• Arkansas version: Article 5, section 20 says the State shall never be made a defendant in its own courts.
• Official-capacity suits: Suits against state officials in their official capacities are functionally suits against the State itself and are generally barred unless an exception applies.
• Modern exception in Arkansas: Suits seeking declaratory or injunctive relief to stop ongoing unconstitutional, illegal, or ultra vires state action.

2. Summary Judgment

• Purpose: To avoid trials where there is no genuine dispute of material fact and one side is clearly entitled to win as a matter of law.
• Standard: The moving party must show:
  • no material fact disputes, and
  • entitlement to judgment under the law.
• Review: Appellate courts review summary judgments de novo (fresh review) and construe all evidence and inferences in favor of the nonmoving party.

3. Due Process Notice Standard in Tax Sales

• “Reasonably calculated” test: Government must use methods “reasonably calculated, under all the circumstances” to inform the owner of the pending action and provide a chance to object.
• Actual notice not required: The Constitution does not guarantee actual receipt, only that reasonable steps are taken.
• Additional steps required when failure is known: If the State learns before the sale that its notice has failed (e.g., returned mail), it must take further reasonable steps, if available.
• No heroic efforts: The State isn’t required to try every imaginable method; it need only act like someone genuinely trying to inform the owner.

4. Taxation vs. Takings

• Taxation: The government’s power to impose and collect taxes. When property is sold to pay delinquent taxes, this is usually treated as enforcement of a tax debt.
• Takings (eminent domain): When the State uses its power to take property for public use (e.g., building a road) and must pay “just compensation.”
• Key difference: Traditionally, lawful tax collection (including tax sales) is not regarded as a “taking” under the Takings Clause, provided proper notice and procedures are followed.
• Modern nuance: Under Tyler, government retention of surplus equity beyond what is owed in taxes may cross into Takings Clause territory, but that was not at issue in Land v. BAS.

5. Supremacy Clause and State Courts

• The Supremacy Clause (U.S. Const. art. VI) makes the U.S. Constitution and federal laws “the supreme Law of the Land.”
• State courts of general jurisdiction typically must entertain federal claims on equal footing with similar state claims; they may not discriminate against federal claims simply because they are federal.
• However, States may apply neutral procedural rules (e.g., pleading requirements, summary judgment rules) to all cases, including federal ones.
• The precise interaction between state sovereign immunity and this principle is contested, as illustrated by the split between the majority and Justice Womack (and echoed by Chief Justice Baker) in this case.

VI. Impact and Significance

A. Practical Impact on Arkansas Tax-Sale Practice

• USPS tracking as a “safe harbor”: The decision strongly suggests that when the Commissioner:
  • sends certified-mail notice to the last known address from the deed or county records, and
  • obtains USPS tracking data confirming “delivered,”
  that combination will ordinarily satisfy constitutional due process, even if the physical return receipt is never received.
• Owner’s duty to maintain accurate records: The case underscores that owners bear responsibility to:
  • ensure correct mailing addresses appear on recorded instruments, and
  • comply with Ark. Code Ann. § 26‑35‑705 by registering their mailing address with the county.
  Failure to do so will make it harder to attack a tax sale on notice grounds.
• Limited pressure to adopt additional safeguards: Although the Court notes several “better” steps the Commissioner could take (multiple mailings, property posting, address research), it declines to constitutionalize those steps, leaving them to legislative or administrative choice.

B. Doctrinal Impact on Sovereign Immunity in Arkansas

• Merits-based immunity: Land reinforces that the unconstitutional-act exception is not a free-standing procedural doorway: plaintiffs must actually win their constitutional argument (at least past summary judgment) to avoid immunity.
• Interlocutory appeals as merits vehicles: Because immunity questions are appealable immediately under Rule 2(a)(10), this structure enables the Court to adjudicate the constitutional merits early, sometimes before any fact-finder has weighed in. Justice Hudson’s dissent highlights how this can compress the usual litigation sequence and tilt the process in favor of the State.
• Continuing instability: The presence of three separate opinions, all sharply critical in different ways, shows substantial internal disagreement over:
  • whether article 5, § 20 admits any judicially crafted exceptions at all (Baker and Womack),
  • whether article 2, § 22 is a textual exception to immunity (Womack), and
  • whether and how federal claims can be blocked by state sovereign immunity (Baker and Womack vs. majority).
  This suggests that the Court’s sovereign immunity doctrine remains in flux and may continue to evolve.

C. Clarifying the Boundaries of Jones v. Flowers

• Limiting Jones: Because Jones also involved Arkansas’s Commissioner of State Lands, Land v. BAS is especially important as a state-court gloss on what Jones requires.
• Key distinction: The Court effectively holds:
  • Returned, undelivered mail → triggers duty to take further steps if reasonably available.
  • Missing return receipt + USPS tracking confirming delivery → does not trigger such a duty in the absence of contrary evidence.
• COVID-19 context: Although the missing receipt occurred during USPS’s COVID-era changes, the Court does not find that context sufficient to render reliance on tracking data unreasonable. Owners and litigants challenging notice will need more concrete evidence that the State knew or had strong reason to suspect non-delivery.

D. Takings Claims in Tax-Collection Contexts Post‑Tyler

• Reaffirming tax vs. takings distinction: Land firmly reiterates Arkansas’s traditional view that tax-delinquency sales (in themselves) are not “takings” when lawfully conducted with adequate notice.
• Narrow reading of Tyler: By focusing on taxation as a distinct government power, the Court implicitly limits the reach of Tyler v. Hennepin County in Arkansas to situations involving the retention of surplus value, not to all tax-sale complaints.
• Practical consequence: Property owners challenging tax sales in Arkansas will generally need to frame their challenges as:
  • due process claims (e.g., inadequate notice, defective procedures), or
  • Tyler-style surplus-retention takings if the government keeps value beyond the tax debt.
  • Pure takings theories based solely on the loss of property through a tax sale, without more, are unlikely to succeed.

VII. Conclusion

Land v. BAS, 2025 Ark. 107, establishes a clear and relatively State-friendly precedent on the adequacy of notice in Arkansas tax-delinquency sales. Where the Commissioner:

• relies on the owner’s recorded address (especially when the owner failed to update or register a new address), and
• sends certified-mail notice that USPS tracking confirms as delivered,

Arkansas courts will generally deem the notice constitutionally sufficient under the Due Process Clause, even if the State never receives a signed return receipt.

On the sovereign immunity front, the case illustrates and deepens an important doctrinal choice: the unconstitutional-act exception operates not as a broad jurisdictional opening, but as a narrow route that closes whenever the plaintiff’s constitutional theory fails on the merits. The majority’s approach intertwines immunity determinations with substantive due process analysis, often at the summary judgment stage and on interlocutory appeal.

At the same time, the sharply divided Court reveals ongoing and unresolved tensions about:

• how literally to read article 5, § 20’s “never,”
• whether the Arkansas Takings Clause constitutes a textual exception to sovereign immunity, and
• how the Supremacy Clause limits the State’s ability to invoke sovereign immunity against federal constitutional claims.

For property owners, the decision is a cautionary tale about the importance of maintaining accurate address information in public records and with county authorities, especially for out-of-state owners of Arkansas property. For the State and its officers, it provides a defensible and administrable benchmark for notice practices in tax sales, while leaving room for the legislature to refine or expand statutory protections if it chooses.

In the broader legal landscape, Land v. BAS represents a contemporary state-court effort to reconcile federal due process precedent, tax-collection realities, and a robust sovereign immunity clause in a way that favors procedural regularity and governmental finality in tax sales, but at the cost, as the dissents warn, of narrowing the practical avenues for property owners to challenge governmental missteps.