30 CROSSING: Does it look like four lanes to you?

The Arkansas Supreme Court today overturned a lower court and said the half-cent sales tax passed by voters for four-lane highways could not be used on the billion-dollar project to widen Interstate 30 in Little Rock to as many as 10 lanes.

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Simply put, the Court opinion said of the plaintiffs’ arguments in the public interest lawsuit:

On appeal, they argue that (1) the plain and unambiguous language of Amendment 91 demonstrates that the funds generated by the amendment are to be used to construct and improve four-lane highways; (2) the circuit court erred by looking outside the language of Amendment 91 and the ballot title to ascertain voters’ intent; (3) the circuit court improperly found that the term “four-lane highway” was not only ambiguous, but also erroneous; (4) the circuit court committed prejudicial and reversible error in relying upon documents that were not admitted at trial; and (5) even taking all the evidence presented at trial, there is no interpretation to go on except the clear and unambiguous language of Amendment 91. We reverse and remand.

The project was originally to cost $650 million, but the cost has ballooned to almost $1 billion. Of the original project, some $461 million was to come from the 10-year half-cent sales tax and the rest in federal highway money. The Arkansas Department of Transportation is counting on voter approval of Issue 1, a new half-cent permanent sales tax, to provide $350 million more for the project. Construction has begun with the state planning to do the job in phases if Issue 1 isn’t improved. The ruling today will send them back to their adding machines.

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Judge Chip Welch ruled for the state. He went beyond the ballot title of Amendment 91 to say it was intended to be spent on all freeways. The plaintiffs had argued spending this money would be an illegal exaction.

But the opinion by Justice Jo Hart said:

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We note first that the stated intent of Amendment 91 as found in the plain text of section 1(c) is “[t]o provide additional funding for the state’s four-lane highway system, county roads, and city streets.” (Emphasis added.) Further, this same section specifies what the tax will be used for: “this amendment levies a temporary sales and use tax and authorizes general obligation highway construction and improvement bonds for the state’s four-lane highway system.” (Emphasis added.) Section 4(a) of Amendment 91 explicitly specifies how the temporary tax may be spent:

(1) Accelerating four-lane highway improvements in progress or scheduled as of January 1, 2011;

(2) Funding new four-lane highway improvements not in progress or scheduled as of January 1, 2011;

(3) Providing matching funds in connection with federal highway programs for four-lane highway improvements; and

(4) Paying the costs of issuance of the bonds.

 

The phrase four-lane highway appears in the amendment more than 30 times. Not for the first time has this court gone to plain language. But this produces perhaps the biggest consequence yet.

Given the repeated reference to “four-lane state highways,” we must conclude that the maxim, “expressio unius est exclusio alterius” applies to the case-at-bar. The phrase expressio unius est exclusio alterius is a fundamental principle of construction that the express designation of one thing may properly be construed to mean the exclusion of another. The repeated reference to “four-lane highways” and the lack of a specific reference to six-lane interstate highways means the Amendment 91 funds cannot be used for the latter. Certainly, if the General Assembly intended that the tax imposed by Amendment 91 be used for major improvements to six-lane interstate highways, such as projects CA0602 and CA0608, the drafters could have expressly so stated.

This ruling applies to both spending on the I-30 “30 Crossing” project and the project to widen Interstate 630 from six to eight lanes.

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There was one dissent, by Justice Rhonda Wood. She agreed that the I-630 project couldn’t receive sales tax funding. But she said Amendment 91 provided for bridges, without describing four-lane bridges only, and the 30 Crossing project includes replacement of the bridge over the Arkansas River.  She would have held the I-30 bridge project was authorized.

Justice Shawn Womack was listed as concurring without opinion.

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Seeking comments all around.

Justin Zachary, attorney for the four plaintiffs, said:  “We are very pleased with the Supreme Court’s opinion today and their decision to make sure that these funds are used for what the voters intended.”

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The case will now be sent back down to Circuit Court for entry of an order consistent with the Supreme Court’s Opinion.

The key questions are for the Highway Department. It entered a unique “design-build” contract on the I-30 project that mandates payment to the contractor even when work isn’t proceeding. Even with passage of Issue 1, the state will be well short of the money needed to do a scaled-down version of the project, it would seem.

A federal lawsuit is still pending on the I-30 project for lack of a sufficient environmental review. Federal Judge Jay Moody, who’d earlier rejected a similar argument on a now-completed widening of I-630 from University Avenue west, has rejected arguments to stop the I-30 project as well.

Richard Mays, attorney in the federal suit, said the aftermath of the decision will be interesting, first because 65 percent of the orginal cost of the I-30 project was tied to the sales tax. The passage of Issue 1 could give enough money, $350 million has been cited, to get by with some of the project. But spending more would have to come from other sources of revenue, including federal money already committed.

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Mays also said there’s an issue of the claim in the lawsuit that the state must reimburse the four-lane highway fund for the millions in Amendment 91 money spent on widening Interstate 630 (an $89 million project, not $600 million as I erroneously wrote). The return of the case to Circuit Court could sort some of these questions out.

Zachary responded to questions by saying:

From the very beginning this was a case about the proper usage of these tax funds. The Supreme Court has given us the guidance now to know that these funds cannot be spent on the I-30 and I-630 projects.

The issues you raise about repayment will most likely be issues that the Circuit Court will have to address.

As to the I-30 project, from the very beginning of the project there have been multiple funding sources for the project. Amendment 91 is just one of those sources.

 

If Issue 1 does NOT pass (and polls show it enjoys voter favor), then the I-30 project is likely dead in the water, Mays said. Then comes the question of the state’s obligation to the contractor.

 

UPDATE: Still no response from state highway officials. But I just got this news release, I kid you not.

Crews performing work along the Interstate 30 corridor in North Little Rock will require a major weekend traffic shift for westbound I-30 and lane closures on the Interstate, frontage road and city streets.

The 30 Crossing project (Job CA0602) is part of ARDOT’s Connecting Arkansas Program that was approved by voters in 2012. It is being funded with the proceeds from the temporary ½-cent sales tax that is set to expire in 2023. The passage or failure of Issue 1 at the polls this November will have no impact on the 30 Crossing work that is beginning this fall, including the construction of a new Arkansas River bridge and improved access to both downtowns.

There is a LOT wrong with this news release now.

UPDATE II: the highway department says, well ..

 

While we respect the Arkansas Supreme Court’s ruling regarding Amendment 91 funds as they relate to the Interstate 630 and 30 Crossing projects, the decision itself is a disappointing one.  We will now work with our co-defendants to determine how to advance regarding this case. This ruling emphasizes now, more than ever, the need for flexibility in funding dedicated to improve the State’s roads and bridges.  

In 2012, the Arkansas Highway Commission (AHC) and the Arkansas Department of Transportation (ARDOT) acted in good faith, and we believe the public voted in good faith regarding Amendment 91, which established a ½-cent sales tax committed to a program of state highway widening projects, known as the Connecting Arkansas Program.  

The Connecting Arkansas Program that was promised to voters in 2012 is creating safe connections to dozens of communities across our State.  The delivery of these projects is ahead of schedule.  The AHC and ARDOT have worked diligently to fulfill these promises.

The 30 Crossing project is an integral part of the Connecting Arkansas Program as a central connector in our overall vision for Arkansas that was promised in 2012.  Interstate 30 through downtown Little Rock and North Little Rock is the highest volume corridor in the State with 120,000 vehicles per day.  The design was based on many community meetings and public hearings over an 18-month period conducted by ARDOT, and was the result of much negotiation and compromise.  The work includes the replacement of the Arkansas River Bridge, which will restore its structural integrity and improve the opening for the Arkansas River navigational channel.  30 Crossing is an important improvement that was promised in 2012 to Arkansas voters. The AHC and ARDOT will begin investigating alternative ways to fund this project consistent with the Supreme Court’s order.

 

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