Page:Board of Trustees of University of Arkansas v. Andrews.pdf/11

 our current constitution removed language from the 1868 constitution that provided the General Assembly with statutory authority to waive sovereign immunity and instead used the word "never." See Ark. Const. of 1868, art. 5, § 45; Ark. Const. art. 5, § 20. The people of the state of Arkansas approved this change when ratifying the current constitution. The General Assembly does not have the power to override a constitutional provision. To the extent section 11-4-218(e) directly contradicts the constitution, it must fail.

Third, under the doctrine of stare decisis, we cannot ignore six decades of this court's precedent prior to Staton. In Nelson Brothers, we stated,

"The human element in legislatures and courts, following a natural impulse, abhors an injustice perpetrated without a forum in which the right denied or the wrong suffered may be asserted or redressed. Therefore, we find legislatures devising means for the assertion of rights or the redress of wrongs even when the state is involved and the courts are as sensitive to such impulse as the legislatures. On that account laws are often enacted and decisions rendered to effectuate abstract justice, but which on no just grounds can be sustained except by unsound or specious reason. An apt illustration of this is found in the cases which we have reviewed. It is with reluctance that we have undertaken this review, but we are impelled by the conviction that these decisions are wrong. We realize that the overruling of a decision has a tendency to render the laws of the state less certain. In this case, however, to adhere to our former decisions would be, as we conceive it, nothing short of judicial usurpation. It is our settled conviction that the state cannot give its consent to the maintenance of an action against it and the court below was without jurisdiction. No one has a vested right to sue the state even when that privilege may be, and has been, given; it may be withdrawn even where a suit has been commenced without disturbing any vested right. Beers, Use of Platenius v. State of Arkansas, 20 How. 527, 15 L. Ed. 991. "The plaintiff cannot complain because the court overrules its former decision, even though that decision permitted the plaintiff to maintain its suit similar to the one now before us." Pitcock v. State, &#91;91 Ark. 527, 121 S.W. 742 (1909)]."

Nelson Bros., 191 Ark. at 636–37, 87 S.W.2d at 397. We conclude that Nelson Brothers, Fairbanks, and Arkansas Department of Human Services are the correct precedent for this court to follow in its conclusion that the General Assembly cannot waive the State's immunity