Page:Arkansas Lottery Commission v. Alpha Marketing.pdf/16

 Commission could not avail itself of the defense of sovereign immunity after filing an answer, a compulsory counterclaim, and a third-party complaint); Parker v. Moore, 222 Ark. 811, 812, 262 S.W.2d 891, 892 (1953) (finding that the Game & Fish Commission could not avail itself of the defense of sovereign immunity because it filed its own action to quiet title, thus becoming akin to a private suitor in state court); see also Arkansas Dep’t of Human Servs. v. State, 312 Ark. 481, 488, 850 S.W.2d 847, 851 (1993) (finding that DHS did not waive its sovereign immunity and stating "in none of the proceedings now before us was DHS the initial moving party"). Unlike Lindsey and Parker, here, the Commission did not assert a counterclaim, did not file a third-party complaint, and did not file its own action. Rather, it maintained a "purely defensive posture," see LandsnPulaski, LLC v. Arkansas Dep’t of Corr., 372 Ark. 40, 43-44, 269 S.W.3d 793, 796-97 (2007), requesting that the court find against Alpha Marketing and in its favor. To so narrowly construe the language of the Commission's affirmative defense overlooks an important policy goal of the sovereign-immunity doctrine—namely, to prevent the State from using sovereign immunity as both a sword and a shield in the same action. Here, the policy rationale does not buttress the finding that the Commission's answer amounted to a waiver. The Commission only raised sovereign immunity as a defense to Alpha Marketing's claims; it never became the moving party such that it should be forced to litigate the declaratory-judgment action contrary to the constitutional proscription.

Furthermore, it is of no consequence that the Commission filed its answer to the second amended complaint subsequent to the hearing in which the circuit court orally denied its motion to dismiss the second amended complaint. The record reveals that the Commission's