Can the Arkansas General Assembly move functions, divisions, or revenue from the Department of Transportation to a different agency?

Plain-English summary

Senator Bart Hester said he was considering ways to streamline and modernize state government. He asked the AG three questions:

1. Can the General Assembly transfer functions, assets, divisions, or revenue from the Arkansas Department of Transportation (ARDOT) to a different agency?
2. Would such a transfer violate Amendment 42 to the Arkansas Constitution?
3. If unconstitutional, who besides the Highway Commission could sue to overturn it?

Attorney General Leslie Rutledge gave a calibrated answer. She declined to opine on hypothetical legislation in the abstract, because the answer turns on the specific text. But she identified a clear outer boundary: Amendment 42 vests the Arkansas Highway Commission with the constitutional power to administer ARDOT. Because of that, the AG concluded, "the General Assembly has no authority to enact a law or regulation that purports to transfer the Commission's superintending control of the Department to another agency."

What else the General Assembly can do depends on proposed legislation. The opinion quotes Amendment 42's reference to powers and duties "now or hereafter imposed by law" and a case recognizing that additional duties may be provided. It does not decide whether particular functions, assets, divisions, or revenue may be transferred.

On standing, the AG declined to speculate on whether any specific party could sue. She catalogued the general standing rule: a litigant must show personal prejudice or membership in a prejudiced class, and Arkansas courts apply this rule with the challenger bearing the burden. Ross v. State, 347 Ark. 334, 64 S.W.3d 272 (2002).

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion addresses proposed legislation only in general terms. Readers considering an actual transfer should examine its text and current Amendment 42 case law.

Historical context

What Senator Hester was preparing for

Senator Hester noted he was "one of the legislators who is working on efforts to 'streamline and modernize Arkansas state government[,]' and that you are considering 'all potential aspects and benefits of state government reorganization.'" He asked about possible transfers from ARDOT to another agency. The AG said the details of any proposed legislation would be critical to a fuller constitutional assessment.

Why Amendment 42 controls

The Commission was created by Amendment 42 in 1952. Section 1 of Amendment 42 vests the Commission with "all the powers and duties now or hereafter imposed by law for the administration of the State Highway Department, together with all powers necessary or proper to enable the Commission or any of its officers or employees to carry out fully and effectively the regulations and laws relating to the State Highway Department." (In 2017, Acts 2017, No. 707, renamed the Arkansas Highway Department to the Arkansas Department of Transportation.)

Statutes track the constitutional grant. Ark. Code Ann. § 27-65-102 (Supp. 2017) repeats the assignment: "The administrative control of the Arkansas Department of Transportation shall be vested in the State Highway Commission."

Section 6 of Amendment 42 also provides for the Commission's appointment of a "Director of Highways," whose duties are prescribed by the Commission or by statute. The Arkansas Supreme Court interpreted this in Bean v. Humphrey, 223 Ark. 118, 121, 264 S.W.2d 607, 608 (1954): the General Assembly, "pursuant to the constitutional mandate," enacted enabling legislation to fund the Director and place administrative control in the Commission.

The Supreme Court treats the Commission as an "independent constitutional agency." See Comm'n on Jud. Discipline & Disability v. Digby, 303 Ark. 24, 29, 792 S.W.2d 594, 597 (1990) (referring to the Commission as an "[i]ndependent constitutional agenc[y]"); Arkansas Motor Carriers Ass'n, Inc. v. Pritchett, 303 Ark. 620, 625, 798 S.W.2d 918, 920 (1990) (same, calling it a "constitutional body"). And per Parkin Printing & Stationery Co. v. Arkansas Printing & Litho. Co., 234 Ark. 697, 711, 354 S.W.2d 560, 568 (1962): "[N]o member of the Highway Department or any of the Commissioners is a subordinate in any of the offices making up the executive department."

What the General Assembly can and cannot do (per the AG)

Cannot: Transfer the Commission's "superintending control" of ARDOT to another agency. That control is constitutionally lodged in the Commission. Statutory reassignment of the core administrative function would violate Amendment 42.

Some legislative authority remains: Section 1 of Amendment 42 refers to powers and duties "now or hereafter imposed by law." The Supreme Court in Pritchett recognized that additional powers and duties may be provided for the Commission. The opinion does not assess a particular proposed change.

Open question: Whether a particular transfer of functions, assets, divisions, or revenue would violate Amendment 42. The AG said the legislation's details would be critical and did not assess a specific proposal.

On standing

If a transfer happened and somebody wanted to sue, who has standing? The AG could not predict the specific facts of a future suit, but laid out the general rule from Ross v. State, 347 Ark. 334, 64 S.W.3d 272 (2002):

[A] litigant has standing to challenge the constitutionality of a statute if the law is unconstitutional as applied to that particular litigant. The general rule is that one must have suffered injury or belong to a class that is prejudiced in order to have standing to challenge the validity of a law. Stated differently, plaintiffs must show that the questioned act has a prejudicial impact on them.

The AG expressly declined to predict who would have standing in a future dispute. She stated the general requirement that a challenger show injury or membership in a prejudiced class.

Common questions

Q: Could the legislature dissolve ARDOT and create a new agency to take over highway functions?
A: The opinion does not assess a proposal to dissolve ARDOT. It says the legislature may not transfer the Commission's superintending control of the Department to another agency.

Q: Could the legislature change ARDOT's name or restructure its internal divisions?
A: The opinion notes the 2017 name change. It does not assess a proposed change to ARDOT's internal divisions and says the details of any legislation matter.

Q: Could the legislature transfer specific revenues from ARDOT to another agency?
A: The AG did not answer whether revenue could be transferred. She said the effect of a specific proposal on the Commission's administrative control would be critical to a fuller analysis.

Q: Who could challenge such a transfer?
A: The AG did not identify any party who would have standing. She gave the general rule: a challenger must show injury or membership in a prejudiced class.

Q: Why is the Highway Commission different from other state agencies?
A: Amendment 42 created the Commission and gave it authority to administer the Highway Department. The opinion describes it as an independent constitutional entity.

Background and statutory framework

Amendment 42 to the Arkansas Constitution created the Commission in 1952. The amendment created the State Highway Commission as a constitutional body, vested it with administrative control over what is now ARDOT, and provided for the appointment of a Director of Highways.

Section 1 of Amendment 42 vests the Commission with "all the powers and duties now or hereafter imposed by law for the administration of the State Highway Department, together with all powers necessary or proper to enable the Commission or any of its officers or employees to carry out fully and effectively the regulations and laws relating to the State Highway Department."

Section 6 of Amendment 42 authorizes the Commission to appoint a Director of Highways with such duties "as may be prescribed by the Commission or by statute." The General Assembly has carried out the constitutional mandate in part by enacting enabling legislation. Bean v. Humphrey.

Ark. Code Ann. § 27-65-102 restates the constitutional assignment: "The administrative control of the Arkansas Department of Transportation shall be vested in the State Highway Commission."

Acts 2017, No. 707 renamed the Arkansas Highway Department to the Arkansas Department of Transportation.

The opinion cites Arkansas Supreme Court cases calling the Commission an independent constitutional agency or constitutional body, and quotes a case saying its members are not subordinates in offices of the executive department. Digby; Pritchett; Parkin Printing.

The standing rule for constitutional challenges is summarized in Ross v. State: the challenger must show personal prejudice or class membership.

Citations and references

Constitutional and statutory provisions:

• Ark. Const. amend. 42, § 1 (Commission's administrative authority)
• Ark. Const. amend. 42, § 6 (Director of Highways)
• Ark. Code Ann. § 27-65-102 (administrative control vested in Commission)
• Acts 2017, No. 707 (renamed Highway Department to ARDOT)

Cases:

• Parkin Printing & Stationery Co. v. Arkansas Printing & Litho. Co., 234 Ark. 697, 354 S.W.2d 560 (1962), Ark. Supreme Court, Commission and members not subordinate to executive
• Bean v. Humphrey, 223 Ark. 118, 264 S.W.2d 607 (1954), Ark. Supreme Court, Director of Highways and enabling legislation
• Comm'n on Jud. Discipline & Disability v. Digby, 303 Ark. 24, 792 S.W.2d 594 (1990), Ark. Supreme Court, "independent constitutional agency"
• Arkansas Motor Carriers Ass'n, Inc. v. Pritchett, 303 Ark. 620, 798 S.W.2d 918 (1990), Ark. Supreme Court, Commission as constitutional body, additional powers permitted
• Ross v. State, 347 Ark. 334, 64 S.W.3d 272 (2002), Ark. Supreme Court, standing rule
• Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997), Ark. Supreme Court, standing
• Hamilton v. Hamilton, 317 Ark. 572, 879 S.W.2d 416 (1994), Ark. Supreme Court, standing
• Medlock v. Fort Smith Serv. Fin. Corp., 304 Ark. 652, 803 S.W.2d 930 (1991), Ark. Supreme Court, standing
• Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996), Ark. Supreme Court, prejudicial impact
• Garrigus v. State, 321 Ark. 222, 901 S.W.2d 12 (1995), Ark. Supreme Court, prejudicial impact

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2019-010
April 2, 2019

The Honorable Bart Hester
State Senator
Post Office Box 85
Cave Springs, AR 72718

Dear Senator Hester:

This is in response to your request for an opinion on the following questions:

1) Does the Arkansas General Assembly have the power to transfer functions, assets, divisions or revenue from the Arkansas Department of Transportation to a different agency?

2) Would such a transfer violate Amendment 42 to the Arkansas Constitution?

3) If such action was possibly unconstitutional, would any individual, entity or group other than the Arkansas Highway Commission have the standing to sue to overturn such an action?

As background for these questions, you note that you are one of the legislators who is working on efforts to "streamline and modernize Arkansas state government[,]" and that you are considering "all potential aspects and benefits of state government reorganization."

RESPONSE

It is impossible to fully address your first two questions in the abstract without reference to any specific proposed legislation. I can discuss what I suspect is the generally applicable law, but the details of any legislation would be critical to a more thorough assessment of its constitutionality. Of perhaps critical importance would be the legislation's effect on the Arkansas Highway Commission's ("Commission") administrative control of the Arkansas Department of Transportation ("Department"). Under Amendment 42 to the Arkansas Constitution, the Commission is the constitutional entity with the responsibility for "administration" of the Department. Amendment 42 would, therefore, prevent the General Assembly from transferring the Commission's administrative control of the Department to a different agency.

As for your third question, I cannot speculate about "standing" because standing questions turn on factual issues. Rather, I can only address the relevant, traditional "standing" requirements.

DISCUSSION

Questions 1 and 2: Power of the General Assembly to transfer functions and the Amendment 42 question.

The General Assembly, of course, is free to amend its own acts, either expressly or by implication, absent constitutional concerns. In this regard, your first question leads me to suspect that the analysis is properly focused on the powers currently vested in the Commission. I must emphasize, however, that this discussion cannot be considered comprehensive. My ability to comprehensively identify all possible constitutional concerns is necessarily limited when advising regarding hypothetical, future legislation.

The Commission was created by Amendment 42 in 1952. That amendment gave the Commission the express power to administer the Department:

> There is hereby created a State Highway Commission which shall be vested with all the powers and duties now or hereafter imposed by law for the administration of the State Highway Department, together with all powers necessary or proper to enable the Commission or any of its officers or employees to carry out fully and effectively the regulations and laws relating to the State Highway Department.

Ark. Const. amend. 42, § 1 (Repl. 2004). In 2017, the legislature changed the name of the Arkansas Highway Department to the Arkansas Department of Transportation. See Acts 2017, No. 707.

Consistent with Amendment 42, Arkansas Code Title 27, chapter 65 (setting out powers and duties of the Commission and the Department) vests the Commission with "administrative control" of the Department. Ark. Code Ann. § 27-65-102 (Supp. 2017).

Amendment 42 also provides for the Commission's appointment of a "Director of Highways," and that position requires the General Assembly to establish and fund that position. Ark. Const. amend. 42, § 6. Accord Bean v. Humphrey, 223 Ark. 118, 121, 264 S.W.2d 607, 608 (1954) (observing that the General Assembly, through enabling legislation to Amendment 42, "provided for the appointment of a Director of Highways, who would have control and management of affairs pertaining to the State highways, subject, however, to the control and approval of the Highway Commission").

The Commission, therefore, is an independent constitutional entity vested with constitutional power to administer the Department. Comm'n on Jud. Discipline & Disability v. Digby, 303 Ark. 24, 29, 792 S.W.2d 594, 597 (1990); Arkansas Motor Carriers Ass'n, Inc. v. Pritchett, 303 Ark. 620, 625, 798 S.W.2d 918, 920 (1990). Consequently, "[n]o member of the Highway Department or any of the Commissioners is a subordinate in any of the offices making up the executive department." Parkin Printing & Stationery Co., 234 Ark. at 711, 354 S.W.2d at 568.

Amendment 42 unquestionably reserves some power to the General Assembly to make laws relating to the Commission and the Department. Pritchett, 303 Ark. at 625, 798 S.W.2d at 920 ("Amendment 42, § 1, to the Arkansas Constitution of 1874, by its own language recognizes that additional powers and duties may be provided for the State Highway Commission."). The Amendment, in section 1 quoted above, refers to the Commission's "powers and duties now or hereafter imposed by law[,]" and it recognizes "regulations and laws relating to the [Department]." However, the Commission is a constitutional entity vested with constitutional power to administer the Department. Consequently, as a constitutional matter, the General Assembly has no authority to enact a law or regulation that purports to transfer the Commission's superintending control of the Department to another agency.

Question 3: Standing.

In the abstract, I can only address the general "standing" requirements that apply when a litigant challenges a statute's constitutionality. The Arkansas Supreme Court has stated:

> In numerous cases, we have held that a litigant has standing to challenge the constitutionality of a statute if the law is unconstitutional as applied to that particular litigant. Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997); Hamilton v. Hamilton, 317 Ark. 572, 879 S.W.2d 416 (1994); Medlock v. Fort Smith Serv. Fin. Corp., 304 Ark. 652, 803 S.W.2d 930 (1991). The general rule is that one must have suffered injury or belong to a class that is prejudiced in order to have standing to challenge the validity of a law. Morrison, supra; Medlock, supra. Stated differently, plaintiffs must show that the questioned act has a prejudicial impact on them. Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996); Garrigus v. State, 321 Ark. 222, 901 S.W.2d 12 (1995).

Ross v. State, 347 Ark. 334, 335, 64 S.W.3d 272, 273 (2002).

In sum, as a general matter, challengers must demonstrate that they suffered damages or were prejudiced by an alleged unconstitutional law to have standing.

Sincerely,

Leslie Rutledge
Attorney General

1. In 2017, the legislature changed the name of the Arkansas Highway Department to the Arkansas Department of Transportation. See 2017 Ark. Acts No. 707.

2. Ark. Const. amend. 42, § 1 (Repl. 2004). See Parkin Printing & Stationery Co. v. Arkansas Printing & Litho. Co., 234 Ark. 697, 705, 354 S.W.2d 560, 565 (1962) (quoting section 1 of Amendment 42 and stating: "The quoted language says that the State Highway Commission shall have charge of the 'State Highway Department.'").

3. Ark. Code Ann. § 27-65-102 (Supp. 2017) ("The administrative control of the Arkansas Department of Transportation shall be vested in the State Highway Commission.").

4. Ark. Const. amend. 42, § 6 ("The Commission shall appoint a Director of Highways who shall have such duties as may be prescribed by the Commission or by statute."). Accord Bean v. Humphrey, 223 Ark. 118, 121, 264 S.W.2d 607, 608 (1954) (observing that the General Assembly, through enabling legislation to Amendment 42, "provided for the appointment of a Director of Highways, who would have control and management of affairs pertaining to the State highways, subject, however, to the control and approval of the Highway Commission.").

5. See id. (observing that the General Assembly, "pursuant to the constitutional mandate," enacted an appropriation for the Department at the same 1953 legislative session).

6. See Comm'n on Jud. Discipline & Disability v. Digby, 303 Ark. 24, 29, 792 S.W.2d 594, 597 (1990) and Arkansas Motor Carriers Ass'n, Inc. v. Pritchett, 303 Ark. 620, 625, 798 S.W.2d 918, 920 (1990) (referring, respectively, to the Commission as an "[i]ndependent constitutional agenc[y]" and a "constitutional body.").

7. Parkin Printing & Stationery Co., 234 Ark. at 711, 354 S.W.2d at 568.

8. See Pritchett, 303 Ark. at 625, 798 S.W.2d at 920 ("Amendment 42, § 1, to the Arkansas Constitution of 1874, by its own language recognizes that additional powers and duties may be provided for the State Highway Commission.").

9. See amend. 42, § 6, supra n.4.

10. Ross v. State, 347 Ark. 334, 335, 64 S.W.3d 272, 273 (2002).