Structural Challenges Survive Personnel Changes: Amendment 33’s Shield Over Constitutional Boards Confirmed

Introduction

In Sarah Sanders, Governor, et al. v. Arkansas Board of Corrections, 2025 Ark. 102, the Arkansas Supreme Court was asked to decide whether a constitutional board could enjoin enforcement of two statutes—Acts 185 and 659 of 2023—that altered the Board’s supervisory relationship with the Department of Corrections. The appellants (Governor Sanders, Secretary Wallace, and the Department of Corrections) contended primarily that the controversy became moot when the then-Secretary (Joe Profiri) was terminated, and that the circuit court abused its discretion in finding irreparable harm when it issued a preliminary injunction. The appellees (the Board and its chairman, Benny Magness) maintained that the problem was structural, not personal, and that Amendment 33 to the Arkansas Constitution expressly insulates constitutional boards from legislative or executive encroachment.

Summary of the Judgment

• Motions disposed of:
  • Motion to remand and vacate preliminary injunction as moot — Denied
  • Motion to disqualify the Board’s counsel on appeal — Dismissed (outside the scope of interlocutory review)
• Holding on the preliminary injunction:
  • The circuit court did not abuse its discretion in finding irreparable harm and in granting the preliminary injunction.
  • The lawsuit is not moot; the termination of Secretary Profiri does not cure the alleged constitutional violation embedded in Acts 185 and 659.
• Result: Preliminary injunction affirmed; litigation on the merits will continue in the circuit court.

Analysis

A. Precedents Cited

The Court drew on a familiar line of cases:

• Baptist Health v. Murphy, 365 Ark. 115 (2006) – Sets out the two-pronged test for preliminary injunctions: irreparable harm and likelihood of success on the merits; provides abuse-of-discretion review standard.
• Lott v. Langley, 2013 Ark. 247 – Defines mootness; courts avoid advisory opinions.
• United Food & Commercial Workers v. Wal-Mart, 353 Ark. 902 (2003) & Wilson v. Pulaski ACT, 330 Ark. 298 (1997) – Emphasize irreparable harm as the “touchstone” of injunctive relief.
• Villines v. Harris, 340 Ark. 319 (2000) & Clark v. Clark, 319 Ark. 193 (1995) – Limit scope of interlocutory appeals; disqualification rulings not immediately appealable.

By reaffirming those doctrines, the Court underscored that structural, constitutional contests often satisfy irreparable-harm analysis because money damages cannot repair institutional injury.

B. Legal Reasoning

1. Mootness Rejected. The appellants claimed that, because Secretary Profiri was no longer in office, there was nothing left to fight about. The Court disagreed: the challenge was aimed at the statutes that reallocated supervisory powers, not at Profiri’s personal conduct. Structural separation-of-powers issues continue regardless of who occupies the post.
2. Irreparable Harm Confirmed. The Board demonstrated that:
   • Acts 185 and 659 shifted hiring, firing, and reporting lines away from the Board, undermining its constitutionally secured autonomy under Amendment 33.
   • Loss of governance authority cannot be adequately compensated by damages.
   • Continued uncertainty threatened institutional stability and public-safety decisions (e.g., prison bed allocations).
   The Court held these findings were not clearly erroneous and that the circuit court did not “depart from the principles of equity.”
3. Likelihood of Success—Uncontested on Appeal. The appellants did not challenge the circuit court’s likelihood-of-success finding, effectively conceding that the Board raised serious questions about the statutes’ constitutionality.
4. Scope of Interlocutory Review. Citing Villines and Clark, the opinion confines itself to the injunction issue; collateral matters (e.g., counsel disqualification) are left for another day.

C. Impact of the Decision

• Mootness Doctrine Clarified. Arkansas courts now have explicit guidance that termination of an officeholder does not moot a statutory or constitutional challenge aimed at institutional arrangements.
• Amendment 33 Empowered. The decision reinforces that constitutional boards retain their delegated powers unless the Constitution itself—not the General Assembly—says otherwise.
• Executive–Legislative Dynamics. Governors and agency secretaries must tread carefully when legislative acts purport to alter constitutional boards. Expect additional litigation or legislative revisions.
• Preliminary-Injunction Thresholds. The case illustrates that when constitutional status is at stake, Arkansas courts will readily find irreparable harm and preserve the status quo pending full adjudication.
• Public-Sector Counsel Retention. Although not resolved on the merits, the Court hinted that constitutionally created boards may invoke Ark. Code Ann. § 25-16-711 to retain special counsel without Attorney General approval—a point likely to recur.

Complex Concepts Simplified

• Preliminary Injunction – A temporary court order that maintains existing conditions until the court can decide the case. To get one, a party must show (1) it is likely to win and (2) it will suffer harm that money can’t fix if the order is not issued.
• Mootness – A lawsuit is moot when the court’s decision will no longer affect the parties. Constitutional or statutory disputes about governmental structure rarely become moot merely because specific officeholders change.
• Amendment 33 – Added to the Arkansas Constitution in 1942, it grants certain state boards independence from gubernatorial or legislative interference, including control over employees.
• Sovereign Immunity – The doctrine that the State can’t be sued without its consent. One dissent argued it bars the Board’s suit; the majority implicitly held that the injunctive relief sought fell within exceptions for unconstitutional acts.
• Irreparable Harm – Injury that cannot be repaired by later awarding money. Loss of constitutional authority meets this standard because authority cannot be bought back.

Conclusion

Arkansas Board of Corrections heralds a significant clarification in Arkansas public-law litigation: removing a disputed official will not extinguish a wider constitutional challenge, and loss of statutory or constitutional governance authority constitutes irreparable harm, warranting preliminary injunctive relief. The Court also signaled that constitutional boards may possess independent authority to retain counsel and that future legislative attempts to realign such boards must squarely confront Amendment 33. Practitioners can expect this precedent to influence future separation-of-powers battles, mootness arguments, and emergency-relief strategies in Arkansas courts.