Lawyers involved in a lawsuit questioning the legality of state spending on two major Pulaski County road projects argued before a new judge presiding over the case Monday.
Pulaski County Circuit Judge Chip Welch took over a lawsuit challenging the spending under Amendment 91 to the Arkansas Constitution from Pulaski County Circuit Judge Alice Gray last week.
Welch spent a little over an hour hearing from attorneys on their respective summary judgment motions and said he would take their arguments, pleadings and exhibits "under advisement for a week or so" before he rules.
He told the attorneys that Gray asked him to take over the case, citing an unspecified illness.
The lawsuit, filed in November, claims a "plain reading" of Amendment 91 to the Arkansas Constitution, which governs a significant amount of spending under the Arkansas Department of Transportation's $1.8 billion Connecting Arkansas Program, limits funding to improvements to four-lane highways or two-lane highways being widened to four lanes.
One of the projects under the program involves a 2.2-mile section of Interstate 630 in west Little Rock. It is being widened to eight lanes from six in an $87.4 million project that began last summer and is scheduled to be completed early next year.
The other is a 6.7-mile section of Interstate 30 through downtown Little Rock and North Little Rock. Construction won't begin until next year under the $631.7 million project, which will replace the Interstate 30 bridge over the Arkansas River and widen some sections to 10 lanes from six.
"These two projects stick out like a sore thumb," said the lead attorney for the plaintiffs, Justin Zachary of Conway. "The plain language is clear on this issue."
Both projects use significant monies from the Connecting Arkansas Program, which focuses work on regionally significant projects around the state. The program is financed in large part by a half-percent sales tax contained in Amendment 91, which voters approved in 2012. The tax is in place for 10 years.
The amendment language defines "four-lane highway improvements" to include "four-lane roadways, bridges, tunnels, engineering, rights of way and other related capital improvements and facilities appurtenant or pertaining thereto, including costs of rights-of-way acquisition and utility adjustments."
The language also includes "the maintenance of four-lane highway improvements constructed with proceeds of the bond" within the definition of "four-lane highway improvements."
The amendment contains other references to four-lane highways, including that the bonds issued as part of the program are payable from the Arkansas Four-Lane Highway Construction and Improvement Bond Account.
Zachary represents four Arkansas residents who sued to stop any Amendment 91 monies being used on the projects.
They include Shelley Buonauito and Sara B. Thompson, both of Fayetteville; Mary Weeks of Little Rock; and Verlon Abram of the Cleburne County community of Wilburn. A fifth plaintiff, Richard Mason of El Dorado, dropped out of the lawsuit.
Defendants include the Arkansas Department of Transportation, the Arkansas Highway Commission, Gov. Asa Hutchinson, state Auditor Andrea Lea, state Treasurer Dennis Milligan and Larry Walther, director of the Arkansas Department of Finance and Administration.
Attorneys for the defendants say it is incorrect for the plaintiffs to argue their case is an "illegal exaction" lawsuit when the Transportation Department is spending the money on roads and not buildings or on other clearly nonhighway uses.
Vincent France, an Arkansas assistant attorney general representing Hutchinson, Lea, Milligan and Walther, told Welch that other parts of the amendment, including the popular name and ballot title, refer to the "state highway system" and made it "clear Amendment 91 applies to all state highways."
Rita Looney, chief counsel for the state Transportation Department, said any reference department officials have made to the state highway system or even the "four-lane highway system" included the interstates, whether they had four, six or more lanes.
Welch suggested that if he sided with Looney's argument that the case required the judge to look beyond the wording Zachary singled out to determine the intent of the amendment, he would have to hold a trial to take testimony.
"Isn't that fact-finding," he asked.
Looney disagreed. "We're doing exactly what the amendment authorized us to do ... for the purposes of improving the state highway system, which includes the interstates," she said.
Zachary said previous cases suggested that the words of the amendment are where ambiguity must be found and the wording is free of ambiguity.
France said the amendment is unique in that it is one of only two that authorize levying a tax -- the other one is the one-eighth-percent conservation sales tax voters approved in 1996 -- and the only one that has been challenged.
Welch also asked several questions about applying language defining highways in federal law to the state amendment.
Metro on 05/14/2019