# Arkansas Lottery Commission v. Alpha Marketing/Concurrence Russell

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Russell
* Dissenting Opinions Danielson Goodson
​J. SHEPHERD RUSSELL, III, Special Justice, concurring. While I join the majority, I write separately to respond to the dissents. I am not convinced that the Commission's original answer to Alpha Marketing's initial complaint constituted a waiver. The doctrine of sovereign immunity is rigid and may only be waived in limited circumstances, one of which is when the State is the moving party seeking specific relief. Short v. Westark Cmty. College, 347 Ark. 497, 504, 65 S.W.3d 440, 445 (2002) (citing State Office of Child Support Enforcem't v. Mitchell, 330 Ark. 338, 954 S.W.2d 907 (1997)). To hold that the Commission became a moving party seeking specific relief is contrary to this court’s case law. The court has not heretofore found credence in an argument for waiver of sovereign immunity when the facts did not unquestionably demonstrate that the State was the moving party. See Arkansas Game & Fish Comm'n v. Lindsey, 299 Ark. 249, 251, 771 S.W.2d 769, 770 (1989) (finding that the ​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 ​answer to the second amended complaint was filed prior to the entry of the circuit court's order denying the motion to dismiss. The written order from the circuit court, rather than the hearing, is the operative procedural fact pertinent to the resolution of this issue. Furthermore, the court prefaced its findings by stating that it had reviewed "the pleadings, responses, replies, supporting briefs, and arguments of counsel." This language necessarily leads to the conclusion that the circuit court considered the Commission's answer to the second amended complaint and that it considered and ruled on the issue of waiver, which both parties argued at the hearing and which Alpha Marketing asserted in its amended response to the Commission's motion to dismiss the second amended complaint.
Finally, sovereign immunity is jurisdictional immunity from suit, see Arkansas Dep't of Envtl. Quality v. Al-Madhoun, 374 Ark. 28, 32, 285 S.W.3d 654, 658 (2008), and it can be pleaded at any time. See Seth v. St. Edward Mercy Med. Ctr., 375 Ark. 413, 291 S.W.3d 179 (2009) (noting that the doctrine of charitable immunity provides charitable organizations with immunity both from liability and from suit and that the defense of charitable immunity was not waived by failure to plead it in the original answer).