A Pulaski County circuit judge on Wednesday ruled that money spent on a project to widen Interstate 630 in west Little Rock under a 2012 amendment to the Arkansas Constitution is legal even though the roadway is being widened beyond the four-lane limit.
In other words, four doesn’t necessarily mean four.
“In this judgment, the court holds that the term ‘four-lane highway system’ was intended to encompass parts of the state system which expanded beyond four-lane roads,” Judge Chip Welch ruled in a 17-page order. “After thoughtful review of all of the evidence, the Court concludes the use of Amendment 91 funds for the projects complained of by plaintiffs is permissible and not an ‘illegal exaction.’”
The ruling came a little more than three weeks after Welch held a one-day bench trial in the lawsuit, which contended that a “plain” reading of Amendment 91, which governs the money spent under the $1.8 billion Connecting Arkansas Program, limits improvements to four-lane highways or two-lane highways that are widened to four lanes.
Amendment 91 was approved by voters in 2012. Among other things, it put in place for 10 years a half-percent increase in the statewide sales tax to help fund the Connecting Arkansas Program, which focuses on regionally significant highway projects.
The lawsuit initially focused on two projects to be built under the program.
But in a May order on competing summary judgment motions, Welch ruled that 30 Crossing, a $631.7 million improvement of the Interstate 30 corridor through downtown Little Rock and North Little Rock, was a bridge project.
The amendment made clear it wasn’t limited to bridges on four-lane highways, the judge said. In addition to adding up to four lanes to what is now a six-lane corridor, 30 Crossing includes replacing the Arkansas River bridge.
That left the widening of a section of I-630 in west Little Rock to eight lanes from four. Work began last summer on the $87.4 million project to widen the 2.2-mile stretch.
The lawsuit was filed in November by five Arkansas residents, one of whom — Richard Mason of El Dorado — later withdrew. The remaining plaintiffs are Shelley Buonauito and Sara B. Thompson, both of Fayetteville; Verlon Abram of the Cleburne County community of Wilburn; and Mary Weeks of Little Rock.
The defendants are the Arkansas Department of Transportation; the Arkansas Highway Commission; Gov. Asa Hutchinson; state Auditor Andrea Lea; Treasurer Dennis Milligan; and Larry Walther, director of the state Department of Finance and Administration.
The lawsuit said a review of the amendment found repeated references to improvements on four-lane roads.
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.
The “obvious, common, plain and unambiguous language of Amendment 91” limits spending proceeds from the temporary tax increase to “state highways of four lanes or to enlarge state highways from two to four lanes,” the lawsuit said.
But they also disagreed with the assertion that the Connecting Arkansas Program was limited to four-lane highways or two-lane highways being expanded to four lanes and referred to the wording of a ballot measure.
The Arkansas Department of Transportation and other defendants in the lawsuit pointed to the first words of the ballot measure, which made no mention of the four-lane limitation found in the other sections.
The first words of the ballot measure read: “For A Proposed Constitutional Amendment To Levy Temporary Sales and use Tax Of One-Half (0.5%) For State Highways and Bridges, County Roads, Bridges And Other Surface Transportation, And City Streets, Bridges And Other Surface Transportation.”
“The ballot measure clearly states that the temporary sales and use tax were to be used for state highways and bridges without limitation,” the department said in court pleadings.
But in denying the motions for summary judgment, Welch found that the phrase “four-lane highway system,” as used in the amendment, was “ambiguous.”
In Wednesday’s ruling, he went further:
“At judgment, after all the evidence, this court finds the phrase, ‘four-lane highway system,’ both ambiguous and erroneous, in short: an error in drafting,” Welch wrote.
But previous court decisions have said that when confronted with ambiguity or error, courts can determine whether adequate proof exists to “overcome the presumption that the language adopted in Amendment 91 is sufficiently precise to convey the intent of the people” and once that threshold is reached, the court can determine “if sufficient evidence of legislative intent exists,” the judge wrote.
In reviewing the facts of the case, Welch sided, ultimately, with the department and the other defendants.
“The proof establishes, and the court so finds, that there is sufficient proof of legislative intent to fund projects including those with more than four already existing lanes to promote the Four-Lane Grid System and ensure its ‘connectivity,’” the judge wrote.
He noted, among other things, that agency documents — including Arkansas Highway Commission minute orders, which carry the force of law — repeatedly refer to phrases such as a “four-lane grid system” when in fact it includes routes, such as I-30 and I-630, as part of the system. Maps also showed that both projects would be part of the Connecting Arkansas Program before voters approved the amendment.
The amendment also grew out of an effort by a blue-ribbon panel to study highway funding in Arkansas and make recommendations to pay for improvements to the system, Welch said. Among the panel’s recommendations: Levy a half-percent increase in the sales tax in place for 10 years. As a result, the Legislature adopted House Joint Resolution 1001 of 2011, which referred the proposed amendment to voters. It passed in 2012.
The judge also noted that Scott Bennett, the Transportation Department director, wrote the final report. A member of the Arkansas Highway Commission, R. Madison Murphy, was a member of the panel and led the campaign for the amendment’s passage.
In a deposition, Murphy testified that the department’s four-lane highway system is a “connected system of highways that exist as four or more lanes, including interstates, as well as planned routes for mobility and for connectivity to different parts of the state and for economic development,” Welch wrote. “Interstate 30 and Interstate 630 are parts of the four-lane system.”
The weight of all the evidence, the judge concluded, means that “any money spent on the I-630 widening … is being used with the intent of the legislature and the intent of the electorate when Amendment 91 was passed.”
Rita Looney, the chief counsel for the department, said the agency welcomed Wednesday’s ruling.
“We are very pleased with the Court’s thorough 17-page opinion, finding that the Plaintiffs didn’t present any evidence that the funds from Amendment 91 were spent for an unauthorized purpose,” she said in a statement. “With the passage of Amendment 91, the legislature and the Arkansas voters intended to improve the lack of funding for the state’s four-lane highway system, a system that includes I-630.”
Justin Zachary, the Conway attorney who headed the legal team that filed the lawsuit, said he was unsure whether he would appeal Welch’s decision.
“Obviously, we’re disappointed in the ruling,” he said. “It just came down. I haven’t studied it in detail. But one thing both sides knew is it was going to get appealed one way or the other, no matter who won. We’re going to discuss options on moving forward with our clients and then we’ll go from there.”
The projects are the subject of additional litigation.
Oral arguments before the 8th U.S. Circuit Court of Appeals in St. Louis are scheduled for Sept. 26 in a federal lawsuit over the I-630 project. The lawsuit alleges the project lacks the federally required environmental review.
Neighborhood groups have challenged the 30 Crossing project in a federal lawsuit filed in May. They contend the environmental review of the project is so flawed that the work should be scrapped until a more rigorous review is conducted.
