Page:Board of Trustees of University of Arkansas v. Andrews.pdf/9

 by the legislature. Subsection (e)(1) allows for "an action for equitable and monetary relief" against the State of Arkansas "or a political subdivision of the State" for violations of the AMWA, and this court has held that the Board is an instrumentality of the State. ''State Comm'r of Labor v. Univ. of Ark. Bd. of Trs.'', 241 Ark. 399, 407 S.W.2d 916 (1966). However, the Board contends that this statutorily created waiver violates the Arkansas Constitution. This court begins with the axiom that every act carries a strong presumption of constitutionality. ''Ark. Dep't of Corr. v. Bailey'', 368 Ark. 518, 247 S.W.3d 851 (2007). As the party challenging the legislation, it is the Board's burden to prove its unconstitutionality, and all doubts will be resolved in favor of the statute's constitutionality, if it is possible to do so. ''Rose v. Ark. State Plant Bd.'', 363 Ark. 281, 213 S.W.3d 607 (2005). An act will be struck down only when there is a clear incompatibility between the act and the constitution. Id.

D. Analysis
The key question on appeal is whether there is a clear incompatibility between section 11-4-218 and article 5, section 20 of the Arkansas Constitution. We conclude that there is a clear incompatibility between section 11-4-218(e) and our state constitution.

In the case at bar, the circuit court relied in its letter order on Jacoby v. Arkansas Department of Education, 331 Ark. 508, 962 S.W.2d 773 (1998), in denying RMCC's motion to dismiss. In Jacoby, employees of the Arkansas Department of Education filed suit against the department in state court alleging violations of the FLSA and claiming that the department failed to pay them. The department moved to dismiss for lack of subject-matter jurisdiction, arguing that Congress could not abrogate the Eleventh Amendment guarantee of sovereign immunity. The circuit court granted the motion to dismiss on