Buonauito v. Gibson

2020 Ark. 352

609 S.W.3d 381

Shelly BUONAUITO, Mary Weeks, Verlon Abrams, and Sarah B. Thompson, Appellants

v.Keith GIBSON, Tom Schueck, Robert S. Moore, Jr., Alec Farmer, and Philip Taldo, Members of the Arkansas State Highway Commission; Scott E. Bennett, Director, Arkansas Department of Transportation; Dennis Milligan, Treasurer of the State of Arkansas; Andrea Lea, Auditor of the State of Arkansas; Larry W. Walther, Director, Arkansas Department of Finance & Administration; and ASA Hutchinson, Governor of the State of Arkansas, Appellees

No. CV-19-979

Supreme Court of Arkansas.

Opinion Delivered: October 29, 2020

Denton & Zachary, PLLC, Conway, by: Justin C. Zachary and Joe Denton, for appellants.

Vincent P. France, Ass't Att'y Gen.; and Rita S. Looney, ARDOT Chief Legal Counsel; and Mark Umeda, ARDOT Attorney, for appellees.

JOSEPHINE LINKER HART, Justice

Shelly Buonauito, Mary Weeks, Verlon Abrams, and Sarah B. Thompson appeal from an order of the Pulaski County Circuit Court dismissing their illegal-exaction suit that sought to enjoin the expenditure of highway funds collected pursuant to Amendment 91 of the Arkansas Constitution for two projects that sought to improve six-lane portions of interstate highways in Little Rock.

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.

In the November 6, 2012 general election, voters approved Issue 1. Issue 1 was one of three constitutional amendments referred to the voters by the legislature in the 2011 regular session. The measure, HJR 1001 of 2011 specified that the issue would be put to the voters as follows:

Section 22. The proposition set forth shall be submitted for approval or rejection by the electors in substantially the following form:

A TEMPORARY ONE-HALF PERCENT (0.5%) SALES AND USE TAX FOR STATE HIGHWAYS AND BRIDGES, COUNTY ROADS, BRIDGES AND OTHER SURFACE TRANSPORTATION, AND CITY STREETS, BRIDGES AND OTHER SURFACE TRANSPORTATION, WITH THE STATE'S PORTION TO SECURE STATE OF ARKANSAS GENERAL OBLIGATION FOUR-LANE HIGHWAY CONSTRUCTION AND IMPROVEMENT BONDS AND PERMANENTLY DEDICATING ONE CENT (1¢) PER GALLON OF THE PROCEEDS DERIVED FROM THE EXISTING MOTOR FUEL AND DISTILLATE FUEL TAXES TO THE STATE AID STREET FUND

On each ballot there shall be printed the following:

FOR a proposed constitutional amendment to levy a temporary sales and use tax of one-half percent (0.5%) for state highways and bridges, county roads, bridges and other surface transportation, and city streets, bridges and other surface transportation, with the state's portion to secure State of Arkansas General Obligation Four-Lane Highway Construction and Improvement Bonds in the total principal amount not to exceed $1,300,000,000 for the purpose of constructing and improving four-lane highways in the State of Arkansas, prescribing the terms and conditions for the issuance of such bonds which will mature and be paid in full in approximately ten (10) years, which payment in full shall terminate the temporary sales and use tax, describing the sources of repayment of the bonds and permanently dedicating one cent (1¢) per gallon of the proceeds derived from the existing motor fuel and distillate fuel taxes to the State Aid Street Fund.

AGAINST a proposed constitutional amendment to levy a temporary sales and use tax of one-half percent (0.5%) for state highways and bridges, county roads, bridges and other surface transportation, and city streets, bridges and other surface transportation, with the state's portion to secure State of Arkansas General Obligation Four-Lane Highway Construction and Improvement Bonds in the total principal amount not to exceed $1,300,000,000 for the purpose of constructing and improving four-lane highways in the State of Arkansas, prescribing the terms and conditions for the issuance of such bonds which will mature and be paid in full in approximately ten (10) years, which payment in full shall terminate the temporary sales and use tax, describing the sources of repayment of the bonds and permanently dedicating one cent (1¢) per gallon of the proceeds derived from the existing motor fuel and distillate fuel taxes to the State Aid Street Fund.

By the vote of the people, HJR 1001 of 2011 became Amendment 91 to the Arkansas Constitution.

Under Amendment 91, a temporary sales-and-use tax of one-half percent (0.5%) was levied. Seventy percent of the tax was earmarked for the state of Arkansas and the remainder of the tax proceeds was dedicated to municipalities and counties. The intent of Amendment 91 was expressed as follows:

§ 1. Intent

The people of the State of Arkansas find that:

(a) The state has an outdated and inadequate system of highway funding that is unable to meet the severe and pressing needs to maintain and improve the state's system of state highways, county roads, and city streets;

(b) Increasing investment in the state highway system, county roads, and city streets will create jobs, aid in economic development, improve quality of life, and provide additional transportation infrastructure, including specifically, a four-lane highway construction plan designed to connect all regions of the state; and

(c) To provide additional funding for the state's four-lane highway system, county roads, and city streets, 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.

Projects CA0602 and CA0608 were selected by the Arkansas Department of Transportation to be funded by Amendment 91 money. The projects were intended to improve portions of Interstate 30 and Interstate 630 in Little Rock. Both of these projects are to widen and improve portions of these interstate highways from six lanes to eight or more lanes.

Appellants, who are citizens and taxpayers of the state of Arkansas, sought to block the projects. They filed an illegal-exaction lawsuit in which they prayed to enjoin the expenditure of funds from the "Arkansas Four-Lane Highway Construction and Improvement Bond Account" ("the Bond Account") on Projects CA0602 and CA0608, and for the restoration of funds to the Bond Account that have been expended on those projects. Appellants’ rationale for their suit was that the projects are not "four-lane highway improvements" as required by Amendment 91, section 2(g)(2) of the Arkansas Constitution.

Both parties filed motions for summary judgment. The circuit court found that the phrase "four-lane highway system" as used in the amendment was ambiguous and denied summary judgment. The circuit court also found, however, that the I-30 project is a bridge project and is therefore covered by Amendment 91. A bench trial followed.

Appellants filed a motion in limine arguing that the "Court's analysis should be limited to the ballot title and the language of Amendment 91" and the court should not consider extrinsic evidence. The motion in limine was denied. After the trial, on September 4, 2019, the circuit court entered a corrected and substituted opinion and judgment in which it found "that the intent of Amendment 91 was to provide for funding for state highways." Accordingly, the court found that the funds spent on the I-630 project were used in accordance with the intent of Amendment 91. As a result, the court found that appellants failed to show an illegal exaction and dismissed their claim with prejudice. Appellants timely filed a notice of appeal.

An illegal exaction is the imposition of a tax or the expenditure of public funds that is not authorized or which is contrary to law. Hartwick v. Thorne , 300 Ark. 502, 780 S.W.2d 531 (1989). Article 16, section 13 of the Arkansas Constitution confers the right upon any citizen to institute suits in his or her own behalf and on behalf of all other interested citizens to protect against any illegal exaction. Id. Pursuant to this cause of action, citizens may enjoin the misapplication of public funds. Id.

Although appellants briefed five separate points, the matter before us may be fairly distilled down to a single issue: "Did the circuit court err in finding that Amendment 91 authorized spending the special tax on projects CA0602 and CA0608?" Disposition of this issue requires us to construe Amendment 91. We review the circuit court's interpretation of the Arkansas Constitution de novo; this court is not bound by the circuit court's decision. Clark v. Johnson Reg'l Med. Ctr. , 2010 Ark. 115, 362 S.W.3d 311. When we construe a provision of the Arkansas Constitution, if the language of the provision is plain and unambiguous, each word must be given its obvious and common meaning, and neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision. Ghegan & Ghegan, Inc. v. Weiss , 338 Ark. 9, 991 S.W.2d 536 (1999).

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...