Gatzke v. Weiss

• Decision Date: 11 December 2008
• Docket Number: No. 08-415.,08-415.
• Citation: 375 Ark. 207,289 S.W.3d 455
• Parties: David GATZKE, Wade Abernathy, Greg Gladden, Michael Lester, Richard Day, Wayne Harlan, and Chad Fite, Appellants, v. Richard WEISS, Anne Laidlaw, B. Alan Sugg, Lu Hardin, Robert Potts, and May Construction Company, et al., Appellees.
• Court: Arkansas Supreme Court

289 S.W.3d 455

375 Ark. 207

David GATZKE, Wade Abernathy, Greg Gladden, Michael Lester, Richard Day, Wayne Harlan, and Chad Fite, Appellants, v. Richard WEISS, Anne Laidlaw, B. Alan Sugg, Lu Hardin, Robert Potts, and May Construction Company, et al., Appellees.

No. 08-415.

Supreme Court of Arkansas.

December 11, 2008.

Hope, Fuqua & Campbell, P.A., by Ronald A. Hope, David M. Fuqua, and Patrick L. Spivey, Little Rock, for appellants.

Friday, Eldredge & Clark, LLP, by Jeffrey H. Moore, Little Rock, for appellees CDI Contractors, LLC; DEL-JEN, Inc.; and Nabholz Construction Corp.

Dustin McDaniel, Att'y Gen. Justin Allen Chief Deputy Att'y Gen., by Lori Freno, Sr. Ass't Att'y Gen., for appellees Richard Weiss and Anne Laidlaw.

Tom Courtway, General Counsel, University of Central Arkansas, Conway, for appellee Lu Hardin.

Jeffrey A. Bell, Sr. Assoc. General Counsel, University of Arkansas, Conway, for appellee B. Alan Sugg.

Lucinda McDaniel, University Counsel, Arkansas State University System, for appellee Robert Potts.

ROBERT L. BROWN, Justice.

On March 23, 2007, the appellants, David Gatzke and others (hereinafter "Gatzke"), as taxpayers of Arkansas, sued appellees, Richard Weiss, Director of the Arkansas Department of Finance and Administration; Anne Laidlaw, interim director of the Arkansas Building Authority; and certain public university officials. Gatzke alleged that Act 961 of 1997, codified at Arkansas Code Annotated section 19-4-1413, and Act 1626 of 2001, codified at Arkansas Code Annotated section 19-4-1415, (hereinafter "the Acts") violate article 19, section 16 of the Arkansas Constitution because they allow for state construction projects to be entered into without competitive bidding.

Gatzke also contended in the complaint that the construction contracts entered into pursuant to the Acts were illegal and constituted an illegal exaction under article 16, section 13 of the Arkansas Constitution. Gatzke prayed for a declaratory judgment, declaring that the Acts are unconstitutional and that the executed contracts constituted illegal exactions. Gatzke also prayed to enjoin the State from entering into any contracts pursuant to the Acts, from prospectively honoring the terms of any existing contracts entered into pursuant to the Acts, and from making expenditures in the future pursuant to the Acts. On August 31, 2007, Gatzke filed an amended complaint, following an order by the circuit judge to add certain necessary parties. The amended complaint named various private building contractors and included the same allegations and prayer that the Acts be declared unconstitutional.¹

Weiss moved to dismiss the amended complaint on grounds that article 19, section 16 of the Arkansas Constitution applies only to county-funded contracts. Following a hearing on the motion, the circuit judge treated the motion as one for summary judgment and found that the Acts were constitutional because article 19, section 16 "applies only to county construction projects." He concluded in his order: "It is therefore ordered that summary judgment be granted in favor of all defendants, and that the plaintiffs' amended complaint be dismissed with prejudice in its entirety."²

This dispute revolves around whether article 19, section 16, of the Arkansas Constitution requires competitive bidding on all public contracts in Arkansas, including state contracts, as argued by Gatzke, or whether it applies only to county contracts, as found by the circuit judge and asserted by Weiss. The Acts provide for letting state contracts without competitive bidding in some circumstances. Act 961 of 1997, codified at Arkansas Code Annotated section 19-4-1413, exempts from general statutory bidding requirements public higher education construction projects if they exceed $5,000,000 and 80% of the estimated project cost (excluding the cost of land) is privately funded. Act 1626 of 2001, codified at Arkansas Code Annotated section 19-4-1415, exempts from general statutory bidding requirements state agency construction projects that exceed $5,000,000 (excluding the cost of land), regardless of the source of project funds. The Acts both require that certain procedures be followed for a contract to be awarded under the exemptions.

In reviewing the constitutionality of statutes, this court presumes that a statute was framed in accordance with the constitution. See Reinert v. State, 348 Ark. 1, 71 S.W.3d 52 (2002). The burden is on the challenger of the statute to prove that it is unconstitutional, and this court will not invalidate a statute for repugnance to the constitution unless the two are in clear and unmistakable conflict. Id.

This court reviews a circuit court's interpretation of a constitutional provision de novo. See City of Fayetteville v. Wash. Cty., 369 Ark. 455, 255 S.W.3d 844 (2007). We are not bound by a circuit court's decision, but in the absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted on appeal. Id. Language of a constitutional provision that is plain and unambiguous must be given its obvious and common meaning. Id. Neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision. Id. Furthermore, when engaging in constitutional construction and interpretation, this court looks to the history of the constitutional provision. See Foster v. Jefferson Cty. Quorum Ct., 321 Ark. 105, 901 S.W.2d 809 (1995). The Arkansas Constitution must be considered as whole, and every provision must be read in light of other provisions relating to the same subject matter. Id.

We turn then to article 19, section 16, which reads:

All contracts for erecting or repairing public buildings or bridges in any county, or for materials therefor; or, for providing for the care and keeping of paupers, where there are no alms-houses, shall be given to the lowest responsible bidder, under such regulations as may be provided by law.

Gatzke contends that the term "all contracts" evidences the framers' and voters' intent that the provision apply to all government contracts, including state contracts, and that the words "in any county" refer to the physical location of the public buildings or bridges. Because of this, he contends the Acts are unconstitutional.

We conclude that the plain meaning of article 19, section 16 restricts its application to county contracts. There is, first, the fact that the words "in any county" would lack any significance unless they restrict the provision relating to public buildings and bridges to county-funded contracts. It is beyond dispute that absent an explicit restriction, sections of the Arkansas Constitution have statewide application. See, e.g., Ark. Const. preamble ("We, the people of the State of Arkansas, ... do ordain and establish this Constitution.") (emphasis added). In drafting and adopting the words "in any county," the framers and voters of Arkansas clearly intended to limit the lowest-responsible-bidder restriction to county contracts. This court will interpret a constitutional provision so that each word carries meaning. See, e.g., Merritt v. Jones, 259 Ark 380, 387, 533 S.W.2d 497, 500-01 (1976) (every word should be expounded in its plain, obvious and common acceptation). The circuit judge was correct in finding that "the `in any county' phrase does not add anything, except ... to limit `all contracts' to `county contracts.'"

In addition to the plain language of article 19, section 16, the historical context of the section, and its meaning in relation to the Arkansas Constitution as a whole, support the circuit judge's reading. Weiss rightly points out that at the time article 19, section 16 was adopted by a vote of the people in 1874, it was immediately preceded by section 15.³ At that time, the two sections read:

Sec. 15. All stationery, printing, paper, fuel, for the use of the General Assembly and other departments of government, shall be furnished, and the printing, binding and distributing of the laws, journals, department reports, and all other printing and binding, and the repairing and furnishing the halls and rooms used for the meetings of the General Assembly and its committees, shall be performed under contract, to be given to the lowest responsible bidder, below such maximum price and under such regulations as shall be prescribed by law. No member or officer of any department of the government shall in any way be interested in such contracts, and all such contracts shall be subject to the approval of the Governor, Auditor and Treasurer.

Sec. 16. All contracts for erecting or repairing public buildings or bridges in any county, or for materials therefor; or, for providing for the care and keeping of paupers, where there are no alms houses, shall be given to the lowest responsible bidder, under such regulations as may be provided by law.

Ark. Const. art. 19, § 15, repealed by Ark. Const. amend. 54, § 2; art. 19, § 16.

Again, placing article 19, section 16 in context and reading it in conjunction with the Arkansas Constitution as a whole, it is clear to this court that the framers of the constitution and the people of this state knew how to distinguish between state contracts and county contracts. If Gatzke's interpretation were correct, there would have been no need for section 15 because section 16 would have applied to all contracts, including those state contracts for building repairs referenced in section 15. That is not a reasonable interpretation. We decline to hold that portions of section 15 were superfluous and unnecessary for adoption.

Though not decisive in itself, we are also aware that significant public functions in 1874 were performed by the counties and not the state. See, e.g., Mansfield Digest of Statutes 1884, §§ 1089-1139 (county buildings), including the courthouse, jail, and poorhouse. It is especially important that...