Selective Sovereign Immunity Cannot Bar Federal Due-Process Claims; Illegal-Exaction Suits Proceed Despite Article 5, Section 20

I. Introduction

In GARLAND COUNTY DISTRICT COURT; PROFESSIONAL PROBATION SERVICES, LLC; SOUTHWEST PROBATION SERVICES, INC.; DESIREE SKEYA; AND BRADY HARMON v. JOHN MERCER, 2026 Ark. 76 (Apr. 23, 2026), the Supreme Court of Arkansas addressed a narrow but recurring threshold issue: whether the Garland County District Court could invoke sovereign immunity to defeat claims arising from the imposition of “probation,” probationary conditions, and a recurring “probation fee” following two DWI convictions.

The plaintiff, John Mercer, alleged Arkansas law prohibited probation as a DWI sentence and, therefore, prohibited the particular supervision and fee imposed in his cases. On that premise, Mercer pleaded: (1) an illegal-exaction claim under article 16, section 13 of the Arkansas Constitution; (2) a federal due-process claim; and (3) a state due-process claim under the Arkansas Civil Rights Act (ACRA). The district court moved to dismiss on article 5, section 20 sovereign-immunity grounds, and the circuit court denied dismissal. The appeal came as an interlocutory appeal under Arkansas Rule of Appellate Procedure-Civil 2(a)(10).

The decision matters because it clarifies (i) the constitutional “override” of sovereign immunity for properly pleaded illegal-exaction suits, (ii) the Supremacy Clause constraint on Arkansas’s sovereign-immunity regime when federal causes of action are asserted, and (iii) the limits of ACRA claims against the State absent an independent constitutional authorization to sue.

II. Summary of the Opinion

  • Illegal-exaction claim: Survives sovereign immunity at the pleading stage because article 16, section 13 is a direct constitutional authorization to sue “against the enforcement of any illegal exactions whatever.”
  • Federal due-process claim: Not barred by article 5, section 20 because the Supremacy Clause prevents a state from using its own law to categorically foreclose federal causes of action in its courts of general jurisdiction, particularly where state law remains open to analogous state claims.
  • ACRA due-process claim: Dismissed because, unlike illegal-exaction suits, ACRA claims are not expressly authorized by the Arkansas Constitution as suits against the State; thus article 5, section 20 controls absent a constitutional authorization.

Disposition: affirmed in part; reversed in part; remanded.

III. Analysis

A. Precedents Cited and Their Role

1. Standards governing sovereign-immunity interlocutory review

  • Ark. Dep't of Fin. & Admin. v. 2600 Holdings, LLC, 2022 Ark. 140: Cited for the proposition that sovereign immunity is a jurisdictional question reviewed de novo.
  • Ark. State Plant Bd. v. McCarty, 2019 Ark. 214 and Hutchinson v. McArty, 2020 Ark. 190: Used to underscore the procedural posture—on a motion to dismiss, the court assumes the complaint’s factual allegations are true and does not resolve factual disputes or merits.

2. Constitutional authorization defeats sovereign immunity for illegal-exaction claims

  • Carson v. Weiss, 333 Ark. 561 (1998): Key authority for the rule that when a plaintiff properly pleads an illegal-exaction claim authorized by article 16, section 13, sovereign immunity does not apply.
  • City of Fort Smith v. Merriott, 2023 Ark. 51, Prince v. Ark. State Highway Comm'n, 2019 Ark. 199, and Robinson v. Villines, 2009 Ark. 632: Deployed to reject a formalistic “tax vs. fee” limitation; an “exaction” can be illegal regardless of label if unauthorized by law. The lead opinion uses these to treat the “probation fee” as potentially within illegal-exaction doctrine if it was compulsory and unauthorized.

3. Statutory DWI sentencing backdrop and the probation/supervision distinction

  • Conic v. State, 2023 Ark. App. 145: Provides the analytical framework distinguishing prohibited “probation as punishment” for DWI offenders from permitted “probationary supervision” under Ark. Code Ann. § 5-65-108(b) limited to monitoring compliance with lawful orders. The Supreme Court uses Conic to explain why factual development is needed before deciding whether Mercer’s supervision/fee was lawful compliance monitoring or unlawful probationary punishment.

4. Supremacy Clause limits on state-law sovereign-immunity barriers to federal claims

  • Alden v. Maine, 527 U.S. 706 (1999): Cited for the general proposition that states retain sovereign immunity absent consent or valid congressional abrogation, including in state courts. The opinion nonetheless distinguishes the separate question presented here: whether Arkansas’s own constitutional sovereign-immunity rule can be used to close Arkansas courts to federal causes of action.
  • Haywood v. Drown, 556 U.S. 729 (2009): The opinion’s centerpiece for Supremacy Clause analysis—state courts of general jurisdiction must entertain federal claims on the same terms as analogous state claims and may not “nullify” federal rights by recasting policy preferences as jurisdictional bars.
  • Land v. BAS, 2025 Ark. 107: Cited (via a prior dissent referenced by the majority) in support of the Supremacy Clause point that state law cannot be structured to undermine federal rights.

5. Separate writings: ultra vires / illegal-act exception and competing views of illegal exaction

  • Ark. Dep't of Env't Quality v. Oil Producers of Ark., 2009 Ark. 297 and Travelers Cas. & Sur. Co. of Am. v. Ark. State Highway Comm'n, 353 Ark. 721 (2003): In Justice Hudson’s partial dissent, cited for the long-recognized principle that suits seeking declaratory/injunctive relief to stop illegal, unconstitutional, or ultra vires state action are not barred by sovereign immunity.
  • Board of Trustees of the University of Arkansas v. Andrews, 2018 Ark. 12 and Martin v. Haas, 2018 Ark. 283: In Justice Hudson’s writing, used to argue that the “illegal act” pathway remains viable post-Andrews and should allow Mercer’s ACRA claim as well.
  • Morningstar v. Bush, 2011 Ark. 350: Mentioned by Justice Hudson to critique prior “tax vs. fee” constraints in some illegal-exaction contexts; the lead opinion, however, explicitly rejects label-based limitations for “exactions.”
  • Watson v. City of Blytheville, 2020 Ark. 51 and Worth v. City of Rogers, 351 Ark. 183 (2002): In Justice Bronni’s dissent, cited for the proposition that illegal-exaction doctrine traditionally concerns unlawful taxes or unlawful spending of tax dollars, not collateral attacks on criminal sentences.

B. Legal Reasoning

1. Constitutional harmonization: article 16, section 13 as an express carve-out

The court frames sovereign immunity under article 5, section 20 as yielding when the Arkansas Constitution itself authorizes suit. Reading the constitution “as a harmonious whole,” it treats article 16, section 13 as a direct, voter-adopted authorization to sue to prevent “illegal exactions whatever.” Thus, the dispositive pleading-stage question becomes whether Mercer alleged that a governmental entity imposed and collected money without legal authority—not whether he will ultimately prove the statutory violation.

2. Pleading-stage restraint: illegality vs. factual classification of the supervision

The statutory dispute requires sorting whether Mercer’s post-DWI “probation” was (a) forbidden probation-as-punishment under Ark. Code Ann. § 5-4-301(a)(1)(D) and § 5-4-322(b)(1), or (b) permitted limited “probationary supervision” under § 5-65-108(b). Because Mercer alleged conditions (e.g., reporting, random testing, revocation threat) that could exceed mere compliance monitoring, the court holds dismissal improper: deciding lawfulness requires factual development and application to a fuller record.

3. “Fee” is not a jurisdictional escape hatch from illegal-exaction review

The district court argued the challenged charge was a “fee,” not a “tax,” implying article 16, section 13 should not apply. The court rejects that move: illegal-exaction doctrine reaches compulsory governmental charges alleged to be unauthorized by law, regardless of label.

4. Federal due process: Supremacy Clause prevents selective foreclosure

The opinion identifies a structural problem if Arkansas applies article 5, section 20 as a selective bar: Arkansas permits some suits against the State when the Arkansas Constitution authorizes them; therefore, it cannot apply state sovereign immunity to categorically exclude federal claims while allowing analogous state-law claims in the same courts. Relying on Haywood v. Drown, the court treats this as a Supremacy Clause constraint: article 5, section 20 cannot operate as an Arkansas-law “trump” to close the courthouse doors to federal causes of action. Importantly, the court reserves merits/party-identity questions (e.g., whether federal law requires a different defendant) for later litigation.

5. ACRA claim: no constitutional authorization, so article 5, section 20 controls

Unlike illegal exaction (explicitly constitutional), ACRA is statutory. The court holds Mercer identified no constitutional provision authorizing an ACRA claim against the State in these circumstances. The opinion also notes the legislature has not waived sovereign immunity for ACRA claims against the State (and, post-Andrews, legislative waiver is itself constrained). The result is dismissal of the ACRA claim on sovereign-immunity grounds.

The concurrence/dissents expose a fault line: Justice Hudson would have allowed the ACRA claim under the “illegal/ultra vires act” line of cases (injunctive/declaratory relief). The lead opinion, however, treats constitutional authorization—not the illegal-act doctrine—as the decisive pathway for overcoming article 5, section 20 in this context, at least as pleaded.

C. Impact

  • Expanded practical reach of illegal-exaction pleading in criminal-adjacent fees: Plaintiffs challenging court-imposed, compulsory charges alleged to be unauthorized by statute may frame the dispute as an illegal exaction and survive sovereign-immunity dismissal, even when the charge is called a “fee.”
  • Federal claims in Arkansas courts: The decision strengthens the proposition that Arkansas cannot deploy its selective sovereign-immunity scheme to shut out federal causes of action in state courts of general jurisdiction, reinforcing Haywood-type symmetry requirements.
  • ACRA against the State remains difficult: Unless tethered to a recognized constitutional authorization (or unless future cases develop the illegal-act/ultra-vires exception in a way that the court accepts for ACRA claims), ACRA claims naming the State (or an arm of the State) remain vulnerable to article 5, section 20 dismissal.
  • Substantive DWI sentencing compliance pressures: Although the court does not decide the merits, the opinion highlights the statutory boundary between prohibited probation and permitted compliance monitoring under § 5-65-108(b); sentencing practices resembling “probation as punishment” in DWI cases may invite civil challenges (at least to the fee component) and further appellate scrutiny.

IV. Complex Concepts Simplified

  • Sovereign immunity (Arkansas): A constitutional rule (article 5, section 20) generally barring suits that make the State a defendant. But it can yield where the Arkansas Constitution itself authorizes suit (e.g., illegal exaction).
  • Illegal exaction: A compelled government charge or taking of money that is not authorized by law (or is contrary to law). This case emphasizes that the label “fee” does not prevent illegal-exaction review.
  • Probation vs. “probationary supervision” in DWI cases: Arkansas statutes generally forbid probation as a DWI sentence, but allow limited supervision solely to monitor compliance with lawful sentencing orders, potentially with a “reasonable fee.” Whether a practice is one or the other may turn on the conditions imposed (reporting, testing, revocation threats, etc.).
  • Supremacy Clause: Federal law is supreme over state law. A state cannot use its own jurisdictional rules to effectively nullify federal causes of action in state courts that otherwise hear comparable claims.
  • Interlocutory appeal: An appeal taken before the case is fully resolved. Arkansas allows immediate appeal from an order denying a motion to dismiss based on sovereign immunity.

V. Conclusion

2026 Ark. 76 sets (or significantly reinforces) three operational rules. First, properly pleaded illegal-exaction claims proceed notwithstanding article 5, section 20, and “fee” nomenclature does not immunize an allegedly unauthorized compulsory charge. Second, Arkansas’s sovereign-immunity framework cannot be applied to categorically bar federal causes of action in state courts where analogous state claims are permitted, due to the Supremacy Clause as articulated in Haywood v. Drown. Third, absent an independent constitutional authorization to sue the State, ACRA claims against the State remain barred by sovereign immunity in the court’s view.

The remand ensures the core merits question—whether Mercer’s supervision and fee were lawful compliance monitoring under § 5-65-108(b) or unlawful probation-as-punishment—will be decided on a developed record rather than at the pleading stage.