The news in an Arkansas Supreme Court oral argument yesterday on how much a Burger King franchisee owed in taxes on free meals provided employees came in what did NOT happen.

As reported by John Moritz in the Arkansas Democrat-Gazette, the state Department of Finance and Administration did not raise the issue of a new court precedent on the legal theory of sovereign immunity. In a sweeping decision that overturned decades of precedent, the Supreme Court said the state could not be sued in its courts and the legislature could not waive that constitutional provision.


DFA’s lawyer Joel DiPippa had served notice earlier that the state would raise the sovereign immunity precedent in the Burger King case, but then he didn’t.

Justice Rhonda Wood asked how the Andrews decision affected the Burger King tax case before the court.

DiPippa said the justices could revisit their own ruling and clarify whether sovereign immunity applied — but he was not asking the judges to do so.

“It’s really only in front of us if you’re asking us to do that,” Wood said.

DiPippa didn’t.


As noted earlier, the court frequently finds ways to avoid taking up new arguments that weren’t raised in the trial court. So this was a longshot argument in any case.

But now let me delve into speculation: Though DiPippa said he hadn’t had time to properly prepare the sovereign immunity argument given how recently things happened, I think there’s another reason the state scuttled away from arguing the point.


I don’t believe Gov. Asa Hutchinson, who controls DFA, wanted to be seen going into court — particularly during the election season — arguing the proposition that no decision by a state bureaucrat, particularly in the department that determines tax bills, is subject to appeal. I’m willing to bet that view of the law — and it is nothing but a sensible view that the Supreme Court’s upheaval of precedent obliterated — is being communicated throughout state government and not just to DFA.

Oh, sure, the state will assert the claim as it long has in familiar cases — people damaged by state acts, such as a woman killed by a police officer speeding 100 mph on a needless response to a minor crime report dozens of miles away. These people will be left to the mercies of the state Claims Commission and the legislators who decide whether to pay damages for such claims.

Sovereign immunity — the King Can Do No Wrong — for every function of state government? No, I can’t see the governor lining up behind that proposition, even if the Supreme Court does. In time, the court will begin to explain just how far it meant to go in invalidating the legislature’s attempt to waive the privilege on the minimum wage law as it applies to state employees. In the meanwhile, a lot of confusion. And it appears the Burger King case won’t provide any clues. If it wasn’t asked to take up the question by the state, I’m betting the court won’t. The court will decide how to tax restaurants for the benefits extended employees for free meals. It may even decide that the state tried to exact too much. And, in a sense, that will be a precedent too on what limits exist for suing the state.