Plaintiffs in lawsuit on funds for highways ask for freeze

Plaintiffs in a lawsuit questioning the legality of spending money under a 2012 amendment to the Arkansas Constitution on highways exceeding four lanes asked a judge Wednesday to freeze all such spending until the issue is litigated.

Meanwhile, Gov. Asa Hutchinson and four other defendants in the lawsuit said in separate court documents the spending on an Interstate 630 widening project and on two future projects to widen sections of Interstate 30 are constitutional.

They also said in their formal answer to the lawsuit any claims against them are barred by the doctrine of sovereign immunity.

The filings came in a lawsuit filed Nov. 7 in Pulaski County circuit court contending a “plain” reading of Amendment 91 to the state Constitution, which governs much of the money spent under the state’s $1.8 billion Connecting Arkansas Program, limits improvements to four-lane highways or twolane highways being widened to four lanes.

The Connecting Arkansas Program is an Arkansas Department of Transportation initiative focusing road construction on regionally significant projects around the state. It’s financed in large part by a half-percent sales tax in Amendment 91, which voters approved in 2012. The tax is in place for 10 years.

The projects on I-30 and I-630 involve six lanes, which the lawsuit said makes them ineligible to be part of the Connecting Arkansas Program.

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 fourlane highways, including the bonds issued as part of the program are payable from the Arkansas Four-Lane Highway Construction and Improvement Bond Account.

An attorney for the plaintiffs, Justin Zachary of Conway, said in Wednesday’s filings he asked Pulaski County Circuit Judge Alice Gray for a hearing on his motion to freeze spending because the state is continuing and proposes to continue “to use substantial amounts of money from the fund for the expansion of interstate highways that are already four lanes or more.”

The projects include ongoing work on a 2.5-mile section of I-630 in west Little Rock.

Its nearly $90 million price tag includes $58 million in Amendment 91 money.

The project began this summer to widen the section of I-630 between Baptist Health and South University Avenue to eight lanes. The project also includes the already completed work to replace the Hughes Street overpass. Work began last week to replace interstate bridges over Rodney Parham Road and Rock Creek.

A project to improve a 6.7-mile section of I-30 through downtown Little Rock and North Little Rock is on track to be built for $630.7 million, 64 percent of which is Amendment 91 money.

Other projects exceeding four lanes on which Amendment 91 money is expected to be spent include one to widen I-30 between Sevier Street in Benton and the U.S.

70 interchange, which will cost $187.3 million based on recently opened bids.

Further spending on the projects would “cause immediate, substantial and irreparable harm to the plaintiffs and all other residents of the state whose payment of sales taxes have contributed to the fund,” according to the court papers.

Hutchinson and three other defendants — Larry Walthers, the director of the Arkansas Department of Finance and Administration, state Auditor Andrea Lea and state Treasurer Dennis Milligan — said in their response, among other things, the claims in the lawsuit are barred by the doctrine of sovereign immunity, the principle the state cannot be sued as stated in the Arkansas Constitution.

In January, the Arkansas

Supreme Court upended years of high-court precedent, ruling the General Assembly cannot pass laws waiving sovereign immunity.

Meanwhile, Zachary said in his pleadings he has been unable to serve the lawsuit on the Department of Transportation or the Arkansas Highway Commission despite “multiple attempts.”

Danny Straessle, the department spokesman, said Zachary has had plenty of opportunities to serve the department and the commission since the lawsuit was filed six weeks ago.

The commission met Nov. 14, a week after the lawsuit was filed, Straessle said. It was “an open meeting and a publicized meeting,” he said.

It’s often easy for litigants to serve lawsuits at commission meetings, he said, because “everybody is there.”