The Arkansas Department of Transportation has asked a circuit judge to reconsider his decision rejecting the agency's request to dismiss another challenge to the financing behind the $1 billion 30 Crossing project that is underway on the Interstate 30 corridor through downtown Little Rock and North Little Rock.
Pulaski County Circuit Judge Mackie Pierce said he would issue a ruling later this week on the request after listening to 30 minutes of arguments Tuesday morning over whether the lawsuit before him was already adjudicated in a previous proceeding.
The department's attorneys contend that it was.
Rita Looney, the agency's chief counsel, pointed to the Arkansas Supreme Court's decision in a separate case involving 30 Crossing.
The state's high court ruled in October that the wording in Amendment 91 to the Arkansas Constitution bars the 0.5% statewide sales tax collected under the amendment from being used on highways wider than four lanes.
Amendment 91, approved by voters in 2012, underpins the department's $1.8 billion Connecting Arkansas Program, an initiative that targets work on regionally significant projects, including 30 Crossing.
In November, a group of plaintiffs led by the Little Rock Downtown Neighborhood Association sued the agency, the Arkansas Highway Commission and members of the state's executive branch, including Gov. Asa Hutchinson, seeking to halt the 30 Crossing project and another project that will widen a section of I-30 in Saline County.
They wanted the projects stopped until the department could "clearly demonstrate" that the projects could be "conducted and completed" in compliance with the Supreme Court ruling and until their case was decided at trial.
In December, Pierce refused to issue an injunction to stop work on 30 Crossing, ruling that the plaintiffs did not have evidence to justify halting construction.
The coalition filed an amended lawsuit in January to include nearly a dozen other road projects in which the coalition identified at least $780.4 million that it said had been illegally spent on the projects.
The amended complaint asked that the money be repaid to the Arkansas Four-Lane Highway Construction and Improvement Bond Account.
The Transportation Department and other defendants have sought to have the case dismissed, arguing in briefs and at a hearing earlier this year that the latest lawsuit was precluded from being heard because the matter already was decided by the Supreme Court's October decision.
Pierce denied the motion in April.
In asking for reconsideration, Looney noted that issues of law were not properly explained and, as a result, advancing the lawsuit invites a "miscarriage of justice."
Her focus is that the latest lawsuit is similar to the lawsuit decided by the Supreme Court. Both cases involve illegal exaction involving the wrongful expenditure of public monies rather than an illegal tax in which a refund to taxpayers could result.
A 2002 decision by the Supreme Court barred illegal exaction lawsuits over the same facts.
"If an illegal-exaction suit were not a bar to another suit, one citizen after another might institute suit for himself or herself, and this could continue until every citizen in the state had sued," the high court said. "The doctrine of res judicata applies."
The doctrine of res judicata is a legal matter already determined by a court, according to an online law dictionary.
"The illegal exaction claim regarding the expenditure of Amendment 91 funds has previously been brought and ruled upon by the Arkansas Supreme Court," Looney said.
She also said the lawsuit's challenges to Amendment 100, which would extend the 0.5% statewide sales tax is premature. It won't go into affect until 2023 and only if certain conditions involving retirement of bonds are met.
Looney also dismissed suggestions that the new litigation involves a different set of plaintiffs, referring back to the Supreme Court's decision in October.
"Every citizen that was a part of that class include the plaintiffs who are before this court," she said.
Richard Mays, the Little Rock environmental attorney representing the plaintiffs, called Looney's arguments "nothing more than an attempt on the part of the defendants to gain more time and to delay a final resolution in this case."
He noted that the arguments invoking the different illegal exactions is to obscure the fact that each lawsuit had "no common plaintiffs."
"They know that and are trying to get around it."
The 30 Crossing project aims to revamp the 6.7-mile Interstate 30 corridor between Interstate 40 and Interstate 530,
In addition to replacing the bridge over the Arkansas River, the project will expand the corridor to as many as 10 lanes in places, from six. Work began on the first phase in September. The case is 60CV-20-640.