McCutchen v. Huckabee

Joe McCUTCHEN v. Mike HUCKABEE, Governor of
the State of Arkansas; Richard Weiss,
Director of the Arkansas Department of
Finance and Administration; The Multi-purpose
Civic Center Facilities Board for Pulaski
County, Arkansas

96-1508                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 21, 1997


1.   Judgment -- summary judgment -- standard of review. -- In reviewing
     summary-judgment cases, the supreme court need only decide if
     the granting of summary judgment was appropriate based on
     whether the evidentiary items presented by the moving party in
     support of the motion left a material question of fact
     unanswered; the burden of sustaining a motion for summary
     judgment is always the responsibility of the moving party; 
     all proof submitted must be viewed in a light most favorable
     to the party resisting the motion, and any doubts and
     inferences must be resolved against the moving party; summary
     judgment is proper when a claiming party fails to show that
     there is a genuine issue as to a material fact and when the
     moving party is entitled to summary judgment as a matter of
     law.

2.   Constitutional law -- acts of General Assembly presumed constitutional --
     challenger's burden. -- It is well settled that acts of the
     General Assembly are presumed to be constitutional and will be
     struck down only where there is clear incompatibility between
     the act and the state constitution; as the opponent of Act 739
     of 1995, appellant bore the burden of proving that the statute
     violated any of the provisions of the Arkansas Constitution.

3.   Constitutional law -- special and local legislation distinguished. --
     Special legislation arbitrarily separates some person, place,
     or thing from those upon which, but for the separation, it
     would operate, while local legislation arbitrarily applies to
     one geographic division of state to the exclusion of the rest
     of the state.

4.   Constitutional law -- standard of review -- "rational basis" and "rational
     relationship" used interchangeably. -- With respect to the standard
     of review for constitutional challenges, the supreme court has
     used the phrases "rational basis" and "rational relationship"
     interchangeably, even within the same opinion.

5.   Constitutional law -- statute not necessarily local or special legislation
     because it affects less than all of state's territory. -- Merely
     because a statute ultimately affects less than all of the
     state's territory does not necessarily render it local or
     special legislation.

6.   Constitutional law -- when act that applies only to portion of state is
     constitutional -- decision to apply act to one area must be rational. --
     An act of the General Assembly that applies to only a portion
     of this state is constitutional if the reason for limiting the
     act to one area is rationally related to the purposes of that
     act; although there may be a legitimate purpose for passing
     the act, it is the classification, or the decision to apply
     that act to only one area of the state, that must be rational.

7.   Constitutional law -- determination of rational reason for application of
     act to one county -- supreme court may consider judicially noticed facts.
     -- In making such a determination as whether there was a
     rational reason for applying Act 795 of 1995 to one county in
     the state, the supreme court may look outside the act and
     consider any fact of which judicial notice may be taken to
     determine if the operation and effect of the law is local,
     regardless of its form.

8.   Constitutional law -- decision to construct civic center in Pulaski County
     was rationally related to purposes of Act 739 of 1995. -- Where the
     purpose of Act 739 of 1995 was to provide funds for the
     construction of a multipurpose civic center that would
     increase tourism, recreation, and economic development
     throughout the entire state; where, in order to achieve these
     purposes, Pulaski County could have been selected as a
     regional location for the civic center because of the
     following judicially noticed facts: (1) Pulaski County is the
     most populous county in the state; (2) Pulaski County is
     centrally located within the state; and (3) Pulaski County is
     the seat of state government, the supreme court could not say
     that the reasons were either arbitrary or capricious; it is
     not the business of the court to second-guess the wisdom of
     the legislature; therefore, the supreme court concluded, as
     did the trial court, that the decision to construct the civic
     center in Pulaski County was rationally related to the
     intended purposes of Act 739 of 1995.

9.   Constitutional law -- Act 739 of 1995 was not local legislation -- did not
     violate Ark. Const. amend. 14. -- Because the decision to locate
     the civic center in Pulaski County was rationally related to
     the purposes of Act 739, the trial judge properly concluded
     that the act was not local legislation; the supreme court
     affirmed the trial court's ruling that Act 739 of 1995 did not
     violate Amendment 14 of the Arkansas Constitution.  

10.  Constitutional law -- Act 739 of 1995 did not violate Ark. Const. art. 5,
      29. -- Where, instead of merely reciting that the
     appropriation would be used to increase tourism, recreation,
     and economic development, Act 739 of 1995 distinctly stated
     that it would accomplish those purposes by defraying the cost
     of constructing and equipping a civic center in Pulaski
     County, the supreme court agreed with the trial court's
     conclusion that the act did not violate Article 5, section 29,
     of the Arkansas Constitution.

11.  Appeal & error -- point affirmed for failure to cite legal authority. --
     Where appellant asserted that the trial court erred in ruling
     that the appropriation made by Act 739 of 1995 was for a
     public purpose but merely quoted two constitutional provisions
     and failed to cite a single case as authority that the act
     somehow violated either, the supreme court affirmed on the
     issue because of appellant's failure to cite any convincing
     legal authority in support of the point on appeal.

12.  Counties -- facilities boards -- created by counties to carry out various
     county activities -- appropriation not unconstitutional. -- Facilities
     boards are not the type of company, association, or
     corporation contemplated by Article 12, section 5, of the
     Arkansas Constitution, which forbids the appropriation of
     money by a county to such entities; rather, facilities boards
     are agencies created by the counties to carry out various
     county activities; therefore, the supreme court affirmed the
     chancellor's ruling that the tendering by Pulaski County of
     funds received pursuant to Act 739 of 1995 to appellee
     facility board was not an unconstitutional appropriation under
     Ark. Const. art. 12,  5.

13.  Constitutional law -- State did not become stockholder or interested party
     in facility board. -- Where the State would never have any legal
     title to or interest in the civic center nor control over the
     facility board, which was not issuing stock or any other type
     of ownership interest to the State in exchange for the $20
     million appropriation, the supreme court affirmed the trial
     court's ruling that the State did not become a stockholder or
     interested party in the facility board in violation of Article
     12, section 7, of the Arkansas Constitution.


     Appeal from Pulaski Chancery Court, Fourth Division; Robin
Mays, Chancellor; affirmed.
     Oscar Stilley, for appellant.
     Williams & Anderson, by: Timothy W. Grooms, Leon Holmes,
Jeanne L. Seewald, and J. Madison Barker, for appellee Multi-
Purpose Civic Center Facility Board.
     Pulaski County Attorney's Office, by: Pat Crossley, amicus
curiae; joined by: Arkansas Municipal League, by: Don Zimmerman;
Association of Arkansas Counties, by: Shep Russell; Hot Springs
City Attorney's Office, by: David White, for the Hon. Robin Mays.

     Annabelle Clinton Imber, Justice.
     The appellant, Joe McCutchen, has challenged the
constitutionality of Act 739 of 1995 whereby the Arkansas General
Assembly appropriated 20 million dollars for the construction of a
multipurpose civic center in Pulaski County.  The chancellor ruled
that the Act was constitutional, and accordingly, it granted the
State's motion for summary judgment.  We affirm.
     The facts of this case are undisputed.  On or about March 10,
1995, the Arkansas General Assembly passed Act 739 of 1995 whereby
20 million dollars were appropriated to the Department of Finance
and Administration to defray the cost for construction of a
multipurpose civic center in Pulaski County.  The relevant
provisions of Act 739 are as follows:

          SECTION 1.  APPROPRIATIONS. There is hereby
     appropriated, to the Department of Finance and
     Administration, -- Disbursing Officer, to be payable from
     the General Improvement Fund or its successor fund or
     fund accounts, the following:

          (A)  For assisting local governments located in
     Pulaski County, Arkansas in defraying the cost associated
     with constructing and equipping a multi-purpose civic
     center, the sum of. . . . . . . . . . .  . . . . . . . .
     . . . . . . . . . . . . . . . . . . . . . . $20,000,000. 
The governor signed Act 739 on March 22, 1995, and by virtue of an
emergency clause contained therein, the Act became effective on
July 1, 1995.
     On August 23, 1995, the Pulaski County Quorum Court enacted
Ordinance No. 95-OR-64 which created the Multi-purpose Civic Center
Facility Board for Pulaski County, Arkansas.  By virtue of the
Ordinance, the Facility Board was granted various powers  necessary
for the construction of the civic center, and the board was granted
ownership of the facility.  Since the enactment of Act 739, the
Arkansas Department of Finance and Administration has paid 11
million dollars to Pulaski County, which in turn tendered the funds
to the Facility Board.
     On December 21, 1995, Joe McCutchen, as a representative of
the taxpayers in Arkansas, filed a complaint in the Pulaski County
Chancery Court challenging the constitutionality of Act 739.  
McCutchen named the Governor, the Director of the Arkansas
Department of Finance and Administration, the Members of the
Facility Board, and Pulaski County as defendants (the "State"). 
Both parties subsequently filed motions for summary judgment in
which they claimed that the material facts were undisputed, and
that each side was entitled to a judgment as a matter of law.
     On September 11, 1996, the chancery court conducted a hearing
on the motions for summary judgment.  During the hearing, the court
took judicial notice of the following facts:  1) Pulaski County is
the most populous county in the state,  2) according to the 1990
census, Pulaski County had a population of 349,660 while the next
largest county, Washington County, had a population of only
113,409, 3) Pulaski County is centrally located within the state,
and 4) Pulaski County is the seat of the state government.  The
trial court concluded that the General Assembly rationally decided
that a civic center located in Pulaski County would enhance
tourism, recreation, and economic development of the entire state,
and therefore the Act withstood McCutchen's various constitutional
challenges.  
     Accordingly, on September 19, 1996, the chancery court denied
McCutchen's motion for summary judgment and granted summary
judgment in favor of the State.  From this order, McCutchen filed
a timely notice of appeal.
     McCutchen appeals from the trial court's granting of summary
judgment to the State.  In Milam v. Bank of Cabot, 327 Ark. 256,
937 S.W.2d 653 (1997), we recently summarized our review of a trial
court's grant of summary judgment as follows:
          In these cases, we need only decide if the granting
     of summary judgment was appropriate based on whether the
     evidentiary items presented by the moving party in
     support of the motion left a material question of fact
     unanswered.  The burden of sustaining a motion for
     summary judgment is always the responsibility of the
     moving party.  All proof submitted must be viewed in a
     light most favorable to the party resisting the motion,
     and any doubts and inferences must be resolved against
     the moving party.  Our rule states, and we have
     acknowledged, that summary judgment is proper when a
     claiming party fails to show that there is a genuine
     issue as to a material fact and when the moving party is
     entitled to summary judgment as a matter of law.
     In this appeal, McCutchen raises five constitutional
challenges to Act 739 of 1995.  It is well settled that acts of the
General Assembly are presumed to be constitutional and will be
struck down only where there is clear incompatibility between the
act and the state constitution.  Stratton v. Priest, 326 Ark. 469,
932 S.W.2d 321 (1996); Fayetteville Sch. Dist. No. 1 v. Arkansas
State Bd. of Educ., 313 Ark. 1, 852 S.W.2d 122 (1993).  Therefore,
as the opponent of Act 739, McCutchen bears the burden of proving
that the statute violates any of the provisions of the Arkansas
Constitution.  Williams v. State, 325 Ark. 432, 930 S.W.2d 297
(1996).
                        1.  Amendment 14
     For his first argument on appeal, McCutchen contends that Act
739 of 1995 violates Amendment 14 to the Arkansas Constitution
which states that "[t]he General Assembly shall not pass any local
or special act."  In Fayetteville Sch. Dist. No. 1 v. Arkansas
State Bd. of Educ., 313 Ark. 1, 852 S.W.2d 122 (1993), we
differentiated that "special" legislation arbitrarily separates
some person, place, or thing, while "local" legislation arbitrarily
applies to one geographic division of state to the exclusion of the
rest of the state.  On appeal, McCutchen asserts that Act 739 is
unconstitutional "local" legislation because it uses state funds
for the sole benefit of Pulaski County.
     Before resolving the merits of this issue, we must first
clarify the appropriate standard of review to be applied to
Amendment 14 challenges.  McCutchen argues that the chancellor
improperly applied the "rational basis" test instead of the
"rational relationship" test.  We find that this argument is merely
a matter of semantics because this court has used the two phrases
interchangeably, even within the same opinion. See, e.g.,
Fayetteville, supra; Owen v. Dalton, 296 Ark. 351, 757 S.W.2d 921
(1988).
     McCutchen further asserts that if an act, on its face, applies
to only one geographic subdivision of this state, it is per se
unconstitutional as a violation of Amendment 14.  To the contrary,
this court has repeatedly held that merely because a statute
ultimately affects less than all of the state's territory does not
necessarily render it local or special legislation.  Fayetteville,
supra; City of Little Rock v. Waters, 303 Ark. 363, 797 S.W.2d 426
(1990).
     Instead, we have consistently held that an act of the General
Assembly that applies to only a portion of this state is
constitutional if the reason for limiting the act to one area is
rationally related to the purposes of that act.  Fayetteville,
supra; Owen, supra; Board of Trustees v. City of Little Rock, 295
Ark. 585, 750 S.W.2d 950 (1988); Streight v. Ragland, 280 Ark. 206,
655 S.W.2d 459 (1983).  Of particular interest, is Phillips v.
Giddings, 278 Ark. 368, 646 S.W.2d 1 (1983), where we clarified
that although there may be a legitimate purpose for passing the
act, it is the classification, or the decision to apply that act to
only one area of the state, that must be rational.  
     By its clear terms, Act 739 of 1995 applies only to Pulaski
County; hence, the relevant inquiry is whether there is a rational
reason for applying this act to one county in this state.  In
making this determination, this court may look outside the act and
consider any fact of which judicial notice may be taken to
determine if the operation and effect of the law is local,
regardless of its form. Littleton v. Blanton, 281 Ark. 395, 665 S.W.2d 239 (1984); Webb v. Adams, 180 Ark. 713, 23 S.W.2d 617
(1929).
     The purpose of Act 739 of 1995 was to provide funds for the
construction of a multipurpose civic center which would increase
tourism, recreation, and economic development throughout the entire
state.  In order to achieve these purposes, Pulaski County could
have been selected as a regional location for the civic center
because of the following judicially noticed facts: 1) Pulaski
County is the most populous county in the state; 2) Pulaski County
is centrally located within the state; and 3) Pulaski County is the
seat of state government.  We cannot say that these reasons are
either arbitrary or capricious.  Moreover, as we noted in Berry v.
Gordon, 237 Ark. 547, 376 S.W.2d 279 (1964), it is not the business
of this court to second-guess the wisdom of the legislature. 
Therefore, we must conclude, as did the trial court, that the
decision to construct the civic center in Pulaski County was
rationally related to the intended purposes of Act 739 of 1995.  
     In reaching this decision we are not unmindful of Humphrey v.
Thompson, 222 Ark. 884, 263 S.W.2d 716 (1954), where this court
held that Act 273 of 1953, which appropriated funds for the
construction of a vocational school in Perry County, was
unconstitutional because it violated Amendment 14.  As in this
case, the General Assembly had a rational reason for wanting to
create a vocational school. Id.  This court, however, ruled that
Act 273 was unconstitutional because we could find no reason why
the General Assembly chose to locate the school in Perry County as
opposed to any other county in the state. Id.  In other words, the
purpose of the act was rational, while the classification or
discrimination against other counties in the state was not.  As
explained above, this problem does not duplicate itself in Act 739
because there is a rational reason for locating the civic center in
Pulaski County.
     In sum, because the decision to locate the civic center in
Pulaski County was rationally related to the purposes of the Act,
the trial judge properly concluded that Act 739 was not local
legislation.  Therefore, we affirm the trial court's ruling that
Act 739 of 1995 does not violate Amendment 14 of the Arkansas
Constitution.  
                    2.  Article 5, Section 29       
     Next, McCutchen argues that Act 739 of 1995 violates Article
5, Section 29, of the Arkansas Constitution, which declares that:
          No money shall be drawn from the treasury except in
     pursuance of specific appropriation made by law, the
     purpose of which shall be distinctly stated in the bill,
     and the maximum amount which may be drawn shall be
     specified in dollars and cents; and no appropriations
     shall be for a longer period than two years.
McCutchen maintains that Act 739 of 1995 violates this
constitutional provision because it does not contain a distinct
statement of its purpose.
     In Arkansas Game & Fish Comm'n v. Page, 192 Ark. 732, 94 S.W.2d 107 (1936), this court reviewed Act 194 of 1935 which
appropriated funds from the Arkansas Game and Fish Commission to
the State Park Commission for the development of state parks.  The
lower court held that Act 194 was unconstitutional because it only
stated the reason why the act was created instead of explaining how
the funds would be used to develop parks within this State. Id.
(Emphasis added.)  
     On appeal, the Park Commission explained that the funds would
be used to acquire additional land for fish and game refuges at all
state parks, and to aid in the completion of the Lonoke Fish
Hatchery.  Id.  This court found that the Commission's explanation
was:
     a pledge for the proper use of the money, but it also
     amounts to an admission or confession of a failure on the
     part of the attempted appropriation to state a specific
     purpose or general purpose of the appropriation.
Id.  In other words, this court held that such an explanation
needed to be contained in the act itself, and the failure to do so
caused Act 194 to violate Article 5, Section 29, of the Arkansas
Constitution.
     In contrast, in Hooker v. Parkin, 235 Ark. 218, 357 S.W.2d 534
(1962), this court upheld an act which appropriated roughly 83
million dollars to the Highway Commission for "maintenance,
construction, repair...of all roads...in the State Highway System." 
Thus, from Hooker and Page, it appears that Article 5, Section 29
requires appropriation acts to declare "how" the appropriated funds
will be used instead of merely explaining "why" the funds were
appropriated.  
     In this case, Act 739 announces that the purpose of the
appropriation is to:
     assist local governments located in Pulaski County,
     Arkansas in defraying the cost associated with
     constructing and equipping a multi-purpose civic center.
1995 Ark. Act. 739, sec. 1(A).  Thus, instead of merely saying that
the appropriation will be used to increase tourism, recreation, and
economic development, the Act "distinctly" states how it is going
to accomplish these purposes:  by defraying the cost of
constructing and equipping a civic center in Pulaski County. 
Therefore, we agree with the trial court's conclusion that Act 739
does not violate Article 5, Section 29, of the Arkansas
Constitution.
                   3.  Article 12, Section 12
                              and 
                       Article 16, Section 2.
     For his third argument on appeal, McCutchen asserts that the
trial court erred in ruling that the appropriation made by Act 739
of 1995 is for a public purpose.  In support of this argument,
McCutchen merely quotes Article 16, Section 2, of the Arkansas
Constitution which requires the General Assembly to pay the debts
of the state, and Article 12, Section 12, which declares that:
          Except as herein otherwise provided, the state shall
     never assume or pay the debt or liability of any county,
     town, city, or other corporation whatever, or any part
     thereof, unless such debt or liability shall have been
     created to repel invasion, suppress insurrection or to
     provide for the public welfare and defense. 
McCutchen, however, fails to cite a single case as authority that
Act 739 somehow violates either of these two constitutional
provisions.  Therefore, as we have explained in numerous opinions,
we must affirm due to McCutchen's failure to cite any convincing
legal authority in support of this point on appeal.  See, e.g.,
Newman v. State, 327 Ark. 339,    S.W.2d    (1997); Milam v. Bank
of Cabot, 327 Ark. 256, 937 S.W.2d 653 (1997).
                    4.  Article 12, Section 5
     Next, McCutchen claims that Act 739 of 1995 violates Article
12, Section 5, of the Arkansas Constitution, which states that:  
          No county, city, town or other municipal corporation
     shall become a stockholder in any company, association or
     corporation; or obtain or appropriate money for, or loan
     its credit to, any corporation, association, or
     institution or individual.
As mentioned previously, pursuant to Act 739, the Department of
Finance and Administration paid 11 million dollars to Pulaski
County, which in turn tendered the funds to the Facility Board. 
Thus, McCutchen claims, Pulaski County made an unconstitutional
appropriation to a "company, association or corporation."  This
argument misconstrues the nature of the Facility Board.
     Pursuant to the Public Facilities Boards Act, Pulaski County
passed Ordinance 95-OR-64 thereby creating the Multi-purpose Civic
Center Facility Board.  The Public Facilities Boards Act clarifies
that counties may create public facilities boards to carry out
various county activities including, but not limited to, the
ownership and construction of "recreation and tourist facilities." 
Ark. Code Ann.  14-37-106 (Supp. 1995).  
     In City of Paris v. Street Improvement Dist. No. 12, 206 Ark.
926, 175 S.W.2d 199 (1943), this court explained that city
improvement districts were not "companies, associations, or
corporations" as contemplated by Article 12, Section 5, but instead
were the "municipality acting through an agency of its own
creation."  Likewise, facilities boards are not the type of
company, association, or corporation contemplated by Article 12,
Section 5.  Rather, facilities boards are agencies created by the
counties to carry out various county activities.  Therefore, we
also affirm the chancellor's ruling on this point.
                    5.  Article 12, Section 7
     Finally, McCutchen argues that Act 739 of 1995 violates
Article 12, Section 7, of the Arkansas Constitution which provides
that:
          Except as herein provided, the State shall never
     become a stockholder in, or subscribe to, or be
     interested in, the stock of any corporation or
     association.
Because Act 739 of 1995 appropriates 20 million dollars to the
Facilities Board, McCutchen asserts that the State has become a
stockholder or an interested party in the Facility Board.
     As admitted in McCutchen's reply brief, the state will never
have any legal title to or interest in the civic center, nor will
it have control over the Facility Board.  Furthermore, the board is
not issuing stock or any other type of ownership interest to the
state in exchange for the 20 million dollar appropriation. 
Therefore, we also affirm the trial court's ruling on this
constitutional challenge.
                       6.  Attorney's Fees
     Because we find that Act 739 is constitutional, the issue of
whether McCutchen is entitled to attorney's fees is moot.
     Affirmed.