Cite as 2026 Ark. App. 472
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-24-850
Opinion Delivered: October 7, 2026
LITTLE ROCK SCHOOL DISTRICT
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
V. SIXTEENTH DIVISION
[NO. 60CV-24-4757]
ROBERT ROBINSON
APPELLEE HONORABLE MORGAN E. WELCH,
JUDGE
REVERSED
CASEY R. TUCKER, Judge
The Little Rock School District (LRSD or the District) appeals the Pulaski County
Circuit Court’s order granting Robert Robinson’s motion for a preliminary injunction
pursuant to the Arkansas Whistleblower Protection Act (AWPA).1 LRSD raises two points
on appeal: (1) Arkansas Code Annotated section 21-1-605 of the AWPA contains a rule of
pleading, practice, or procedure in violation of amendment 80 and thus is unconstitutional;
and (2) the circuit court’s finding that Robinson suffered an adverse employment action as
1
The AWPA is codified at Ark. Code. Ann. §§ 21-1-601 to -610 (Repl. 2022 & Supp. 2025) (amended by Act 1962 of 2005, § 94 (repealing § 21-1-609)); (§ 21-1-605 held unconstitutional by Board of Trustees v. Andrews, 2018 Ark. 12, 535 S.W.3d 616, to the extent it abrogates sovereign immunity; see also Ark. Cmty. Corr. v. Barnes, 2018 Ark. 122, 542 S.W.3d 841).
a result of whistleblowing was an abuse of discretion. We conclude that section -605(b) is
unconstitutional; accordingly, we reverse without reaching the second point.
I. Background
In the spring of 2024, Robinson was the LRSD executive director of human
resources, having worked for the District since 1989. During a staff realignment, which the
District was conducting in an effort to cut its budget by $16 million, the three director
positions in human resources were consolidated into two positions. LRSD sent Robinson
and the other two human resources directors notices of nonrenewal. All three directors, in
addition to other candidates, were permitted to apply and interview for the two new director
positions. The two other directors were hired to fill the new positions. Robinson’s contract
expired without renewal in June 2024.
During approximately the same time frame, the District was working through what
constituted proper procedures under the LEARNS Act,2 particularly as it pertained to
teacher dismissal and nonrenewal of contracts. While many in the District thought teachers
were no longer entitled to hearings upon contract termination or nonrenewal, Robinson
advised that teachers should still be afforded a hearing upon such occurrences. Also, around
the same time, Robinson advised that the District needed to increase one female high school
principal’s pay to make it commensurate with that of another high school principal who was
male.
2
Act 237 of 2023.
2
When Robinson’s contract was not renewed, he brought the current action claiming
that LRSD had violated both the Arkansas Civil Rights Act and the AWPA by not renewing
his contract. He alleged the nonrenewal of his contract was an adverse employment action
taken in response to his advocating for hearings for teachers and for equal pay for the female
principal, which he framed as whistleblowing activities. Adverse employment action in
response to whistleblowing is prohibited by the AWPA. See Ark. Code Ann. § 21-1-603.
Robinson sought a preliminary injunction reinstating him to his position pursuant to Ark.
Code Ann. § 21-1-605(b). LRSD raised the constitutionality of section 605(b) before the
circuit court. The court denied LRSD’s motion to find the statute unconstitutional and
granted Robinson’s motion for a preliminary injunction. The court ordered LRSD to
reinstate Robinson to his position and place him on paid administrative leave until the
conclusion of the case. LRSD timely appealed.
II. Constitutionality of Arkansas Code Annotated Section 21-1-605(b)
This court reviews a circuit court’s interpretation of the constitution and the related
determination as to the constitutionality of an act de novo. Thurston v. League of Women
Voters of Ark., 2024 Ark. 90, 687 S.W.3d 805. “Acts of the legislature are presumed
constitutional, and the party challenging the statute has the burden of proving otherwise.
Archer v. Sigma Tau Gamma Alpha Epsilon, Inc., 2010 Ark. 8, 362 S.W.3d 303. An act will be
struck down only when there is a clear incompatibility between the act and the constitution.
Bakalekos v. Furlow, 2011 Ark. 505, 410 S.W.3d 564.” Id. at 6, 687 S.W.3d at 811.
3
The present case presents a question involving the separation of powers— specifically,
the power to prescribe pleading, practice, and procedure for all courts, which resides with
the supreme court. Article 4, section 2 of the Arkansas Constitution mandates the
separation of powers between the three branches of government: “No person or collection
of persons, being of one of these departments, shall exercise any power belonging to either
of the others, except in the instances hereinafter expressly directed or permitted.” Ark.
Const. art. 4, § 2. Amendment 80, section 3 of the Arkansas Constitution expressly states
that “the Supreme Court shall prescribe rules of pleading, practice and procedure for all
courts.”
Since the passage of amendment 80, the supreme court has held that legislative
attempts to create rules regarding pleading, practice, and procedure are unconstitutional,
even if they do not conflict with the judiciary’s procedural rules. In Mendoza v. WIS
International, Inc., the supreme court explained:
Prior to the passage of amendment 80, this court and the legislature
shared authority to prescribe procedure. Curtis v. State, 301 Ark. 208, 783
S.W.2d 47 (1990). In State v. Sypult, 304 Ark. 5, 7, 800 S.W.2d 402, 404
(1990), we held that when conflicts arise between legislation and rules of
evidence and procedure, “our rules remain supreme.” Conversely, since the
passage of amendment 80, we held that “so long as a legislative provision
dictates procedure, that provision need not directly conflict with our
procedural rules to be unconstitutional. This is because rules regarding
pleading, practice, and procedure are solely the responsibility of this court.”
Johnson, 2009 Ark. 241, at 8, 308 S.W.3d at 141.
2016 Ark. 157, at 9, 490 S.W.3d 298, 303.
4
A law is procedural if it prescribes “‘the steps for having a right or duty judicially
enforced, as opposed to the law that defines the specific rights or duties themselves.’” Id. at
5, 490 S.W.3d at 301 (quoting Summerville v. Thrower, 369 Ark. 231, 237, 253 S.W.3d 415,
420 (2007)). In Mendoza, the supreme court held Arkansas Code Annotated section 27-37-703 unconstitutional because it dictated that the failure of a vehicle occupant to use a
seatbelt was not admissible evidence in a civil action except under limited circumstances.
The court held that this provision overstepped legislative bounds because it involved a rule
of evidence, which is a rule of pleading, practice, and procedure.
Similarly, in Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135, the
supreme court struck down as unconstitutional parts of Act 649 of 2003, the Civil Justice
Reform Act (CJRA). Specifically, it found that the nonparty-fault provision
unconstitutionally established a procedure by which the fault of a nonparty would be
litigated.3 The court in Johnson also held the provision of the CJRA pertaining to evidence
of medical costs unconstitutional.4 The provision limited the admissible evidence of the
costs of necessary medical expenses to those costs actually paid by or on behalf of the plaintiff.
The court stated that this provision crossed the separation-of-powers line because it pertained
to rules regarding the admissibility of evidence, which was in the supreme court’s province.
3
Ark. Code Ann. § 16-55-202 (Repl. 2005).
4
Ark. Code Ann. § 16-55-201 (Repl. 2005).
5
The Arkansas Supreme Court has adopted the Arkansas Rules of Civil Procedure to
govern procedure in circuit courts.5 Ark. R. Civ. P. 1. Rule 65 provides the procedure for
obtaining either a preliminary injunction or a temporary restraining order. The supreme
court has expounded on Rule 65:
In determining whether to issue a preliminary injunction pursuant to Rule 65,
the circuit court must consider two issues: (1) whether irreparable harm will
result in the absence of an injunction or restraining order and (2) whether the
moving party has demonstrated a likelihood of success on the merits. Ark.
Dep’t of Human Servs. v. Ledgerwood, 2017 Ark 308, 530 S.W.3d 336.
City of Jacksonville v. Smith, 2018 Ark. 87, at 5, 540 S.W.3d 661, 665–66.
In Arkansas Department of Education v. Jackson, the supreme court quoted Thurston v.
Safe Surgery Arkansas, 2021 Ark. 55, at 19, 619 S.W.3d 1, 13, in stating that “preventing
irreparable harm is ‘the touchstone of injunctive relief.’” 2023 Ark. 105, at 7, 669 S.W.3d
1, 7. Even if a party has demonstrated a likelihood of success, the circuit court cannot grant
injunctive relief in the absence of irreparable harm. Id. Harm is normally considered
irreparable only when it cannot be adequately compensated by money damages or redressed
in a court of law. Id. at 8, 669 S.W.3d at 7. The party seeking a preliminary injunction has
5
During oral arguments, counsel for Robinson raised for the first time the question of whether Arkansas Rule of Civil Procedure 81, which is limited to special proceedings, applies to section 21-1-605, thereby rendering it constitutional. Since Robinson did not raise this issue until oral arguments, we cannot consider it. See Farm Bureau Mut. Ins. Co. of Ark. v. David, 324 Ark. 387, 921 S.W.2d 930 (1996) (We do not consider arguments raised for the first time in reply briefs or in oral arguments.). See also State Farm Mut. Auto. Ins. Co. v. LaSage, 262 Ark. 631, 634, 559 S.W.2d 702, 704 (1978) (holding that an argument raised for the first time in oral arguments was “raised too late for determination in this court.”).
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the burden of demonstrating both factors. Muntaqim v. Lay, 2019 Ark. 203, 575 S.W.3d
542.
Rather than seeking a preliminary injunction under Rule 65, Robinson sought a
preliminary injunction under Arkansas Code Annotated section 21-1-605(b), which provides
the procedure for reinstating a public employee to his or her job:
(1) A public employee alleging in a civil action that he or she was
terminated from his or her position as the result of adverse action prohibited
under § 21-1-603 may request an expedited hearing on the issue of the public
employee’s being reinstated to the public employee’s position until the
resolution of the civil action brought under this subchapter.
(2) If at an expedited hearing the public employee demonstrates that a
reasonable person would conclude that his or her termination was a result of
adverse action prohibited under § 21-1-603, the court shall order that the
public employee be:
(A) Reinstated to his or her position until the conclusion of the civil action
brought under this subchapter; or
(B) Reinstated to his or her position and placed on paid administrative
leave until the conclusion of the civil action brought under this subchapter.
Section -605(b) states that the circuit court shall grant the requested preliminary injunction
upon a demonstration at the expedited hearing “that a reasonable person would conclude
that his or her termination was a result of an adverse action prohibited by section 21-1-603.”
Notably, this provision lacks the requisite showing of irreparable harm and likelihood of
success on the merits mandated by the supreme court in Rule 65 and years of case law. In
fact, Robinson argued to the circuit court in his motion for a preliminary injunction that a
showing of irreparable harm was not necessary, and the circuit court so held.
7
Arkansas Code Annotated section 21-1-605(b) prescribes “the steps for having a right
or duty judicially enforced.” Thus, it is procedural and violates the separation-of-powers
doctrine and amendment 80, section 3. Moreover, the provision is in direct contravention
of Arkansas Rule of Civil Procedure 65 and case law.
Robinson maintains that Rule 65(e) provides a basis upon which section -605(b) is
allowed to prescribe procedure. Rule 65(e) states:
(e) When a statute or other applicable law allows for emergency relief, the
procedure under subsection (b) will apply unless an applicable statute specifies
a different procedure.
Rule 65(e), by its very terms, applies only to situations involving “emergency relief.” Section
21-1-605 does not provide for emergency relief. While section -605(b) provides for an
“expedited hearing,” such is not the same as “emergency relief” as used in Rule 65(e). The
reporter’s notes address the applicability of Rule 65(e):
Courts may grant emergency relief under certain circumstances other than
when a party strictly seeks an injunction or temporary restraining order. . . .
Although the prior text of Rule 65 made no reference to those emergency relief
situations, cases both before and after the 2011 overhaul of the Rule recognize
that its procedures apply in those emergency relief situations. . . . The
addition of subsection (e) incorporates this practice into the text of the Rule
clarifying that Rule 65’s procedures apply when seeking emergency relief
unless they conflict with a statutory provision governing the terms under
which emergency relief may be granted.
Ark. R. Civ. P. 65 addition to rep. notes 2023 amend. The reporter’s notes cite examples of
emergency-relief provisions: those providing for emergency custody of at-risk juveniles;6
6
Ark. Code Ann. § 9-27-314 (Repl. 2020).
8
emergency custody of an adult at risk of maltreatment;7 and emergency-custody
determinations of children crossing state lines.8
Unlike the examples provided in the reporter’s notes to Rule 65(e), the AWPA does
not contemplate the provision of emergency relief in order to avoid irreparable harm.
Rather, section -605(b) provides for reinstatement when a public employee has been
terminated from his position as the result of adverse action prohibited under section 21-1-603. And, as explained by the supreme court in Manila School District No.15 v. Wagner, the
loss of a job is not irreparable harm because it is reparable by money damages:
The harm alleged by Appellee that would result from her not being
kept on as superintendent is that caused by the loss of her job and,
correspondingly, the loss of her salary; the possibility that she may have to
relocate to another community to obtain similar employment; and the
potential damage to her reputation. This is the same type of harm that was
alleged in Kreutzer [v. Clark], 271 Ark. 243, 607 S.W.2d 670 [(1980)], wherein
this court held that such harm is present in virtually every employmenttermination case, and it can be recouped in a court of law by a favorable
judgment and an award of money damages. We agree with the Eighth Circuit
that the loss of a job is “quintessentially” reparable by money damages. Minn.
Ass’n of Nurse Anesthetists [v. Unity Hosp.], 59 F.3d at 83 [(8th Cir. 1984)].
356 Ark. 149, 155–56, 148 S.W.3d 244, 248 (2004). Rule 65(e), applicable only to statutes
providing for emergency relief, does not apply to Arkansas Code Annotated section 21-1-605(b).
7
Ark. Code Ann. § 9-20-115 (Repl. 2020.
8
Ark. Code Ann. § 9-19-204 (Repl. 2020).
9
The legislature overstepped its bounds by dictating pleading, practice, and procedure
in section 21-1-605(b) of the AWPA, a function expressly entrusted to the judiciary by
amendment 80 and article 4, section 2 of the Arkansas Constitution. Thus section -605(b)
is unconstitutional.
Reversed.
WOOD and HIXSON, JJ., agree.
Friday, Eldredge & Clark, LLP, by: Christopher Heller, for appellant.
Sutter & Gillham, P.L.L.C., by: Luther Oneal Sutter and Lucien R. Gillham, for appellee.
10