This morning the Washington State Supreme Court issued an opinion in Freeman v. Gregoire, the suit filed by Bellevue developer Kemper Freeman, Jr. to block transfer of the I-90 center lanes to Sound Transit for East Link.

They ruled 7-2 in favor of the state – which in this case is for light rail. Freeman requested a “writ of mandamus”, essentially a command, to the state specifically prohibiting them from entering into any agreement with Sound Transit for use of the I-90 center lanes.

This prohibition was denied because courts don’t typically issue commands to the legislature to follow the constitution – it’s assumed they already will – and there’s no specific, mandatory requirement in state law to do anything unconstitutional. The sections of state law in question just require the state to “complete negotiations” with Sound Transit and to spend money on a valuation study of the I-90 express lanes pursuant to that negotiation.

The court found that motor vehicle funds spent on the study were an administrative function that indirectly benefits the highway system – a use which is not prohibited. However, the majority opinion specifically omitted discussion of whether or not they felt a transfer of highway property to Sound Transit would be constitutional – they just declined to issue the broad prohibition Freeman requested.

I wouldn’t be surprised if a new case is filed once the lanes are actually transferred to Sound Transit.

We really, really need to change the state constitution. A big step is to elect better representatives, but for now, I want to call out Transportation for Washington, the campaign that’s fighting to make transit a bigger part of the picture in Olympia. If you’re not on their mailing list, you should be. Their press release had a bang-on quote this morning: “This frivolous lawsuit brought on by Kemper Freeman and his anti-transit colleagues was just a cynical attempt to thwart the voters’ will and derail transit.”

53 Replies to “Sound Transit: 7, Anti-Transit Suburban Developers: 2”

  1. “We really, really need to change the state constitution.”

    Get together an initiative drive, until then, ain’t nothing going to happen

    1. IANAL, but I don’t think it can be changed through initiative. I think it has to come from the legislature. We need to elect better representatives.

      1. I think the real solution right now is to allow as many people as want to live here to move into Seattle so we just get more districts. ;)

      2. Ben, agreed. We should also look at expanding Seattle out *cough*Whitecenter*cough* as well as up.

      3. Maybe not, Ben. Tim Eyman has succeeded in amending the 50-percent vote requirement of the State Constitution into a 2/3rds vote requirement for revenue bills. Let’s look for a similar mechanism for the gas tax.

  2. The dissent was interesting. It was basically a rant accusing the majority of overriding the will of the people, who apparently only “tolerate” gas tax and car fees because they go to roads. Basically the two accused the majority of bias in favor of light rail, when in fact the majority argument was fairly narrow, and based on procedural questions.

    I did notice Sanders on the dissent. Didn’t we just vote his ass out in favor of Wiggins?

    1. I did notice Sanders on the dissent. Didn’t we just vote his ass out in favor of Wiggins?

      It’s normal for justices to stay on cases they heard before they were unelected. In this case, Sanders heard Freeman v. Gregoire before being unelected, so he stayed on to the end.

    2. Sanders was paid for 60 days after Wiggins was sworn in so that he could clear his (substantial) backlog; he obviously still hasn’t cleared it, but he’s no longer being paid.

      Sanders still votes (and writes) on cases he participated in hearing, as has every other Supreme Court judge who left recently. Wiggins wasn’t on the Court when this case was heard and so can’t participate.

      Majority opinion.
      Justice Alexander’s concurrence.
      Justice J. Johnson’s dissent.
      (Warning, PDFs)

    3. Actually, the dissent is worth reading for this Real Men of Genius moment alone:

      “Park-and-ride facilities both relieve congestion and constitute a valid highway purpose – public transportation projects do not,” James Johnson said.

      1. I think it’s interesting that if we had a more holistic approach to measuring congestion, the *opposite* might be true. Park and ride facilities probably increase arterial congestion…

      2. Wow. That is pretty amazing.

        So P&R parking lots are a valid highway purpose, but the transportation people use after parking their cars is not?

        Amazing.

      3. So wait, does that mean the gas tax can be used for park & rides !? Damn, now THAT would be cool. Let’s tap the gas tax to pay for Park & Rides already on the drawing board and call it a draw!

      4. On a more fundamental level, who does he think builds P&Rs? Public transit agencies. As part of public transit projects. As he seems to be so fond of borrowing verities from the US Supreme Court, I’ve got one for him: his is “the logic of the Queen of Hearts.”

      5. Oops, that was an appellate court, not the US supremes. Nonetheless, I’m glad I’m not the only one who thinks his reasoning is delusional.

      6. Try to remember to bring this up next time there’s a supreme court election. Donate to a pro-transit opponent. :)

      7. Some P&R lots are WSDOT facilities. WSDOT funding also goes to a certain portion of some projects like the flyer stop at Kingsgate. My question is does WSF make any accounting provision for passenger only ferry funding not using any gas tax money?

      8. Right, but he’s saying that P&R’s serve a highway purpose while “public transportation projects” do not; particular ownership of the property is not part of his argument. What does he think people do at P&R’s, hold tailgating parties?

      9. He probably figures that 4 people park, three of them get in the fourth’s car, and they get back on the highway as an HOV. No transit needed!

        … and probably incredibly uncommon…

      10. FWIW there are P&R lots with no transit service. People do use P&R lots as starting points for bike rides and meeting points to car pool not just to work but for skiing, hiking, etc. I think the “logic” is that the gas tax is used to facilitate getting customers to transit via their car. That’s what cars do; get people places. Once delivered it’s up to the transit agencies to fund their operations.

      11. I still think that’s pretty tortured logic. He lists “relieving congestion” as a valid highway purpose. Any transit with a degree of separation — bus/HOV lanes or rail — relieves or mitigates congestion by providing an alternative.

        I also note that P&Rs without transit service are a small minority, and I really can’t imagine why the heck the state would bother building them if there is no service. Are they served by vanpools or private shuttles?

      12. I still think that’s pretty tortured logic. He lists “relieving congestion” as a valid highway purpose.

        Relieving congestion is a valid purpose for a highway project. A highway is defined as vehicle ROW (see definition for vehicle, a train isn’t one; nor is a boat). Safety is also a valid reason for construction of a highway project. Safety and reduction of conjestion don’t provide a reason to fund non-highway related projects.

        I also note that P&Rs without transit service are a small minority, and I really can’t imagine why the heck the state would bother building them

        They should probably be called Park & Pool lots. Some of them may have had transit at one time. They are primarily outside areas served by transit but those areas are also likely where commutes are extremely long.

  3. Their is a typo in the title, I believe it should read:

    People: 7, Anti-Transit Suburban Developers: 2

    1. I like it. Also, don’t you find it amusing that the dissenting author is James Johnson? I almost called you out… :)

    1. It doesn’t have an end date, no. The legislature has tolling language that allows them to continue a toll indefinitely for maintenance, etc. And that’s generally a good thing!

  4. I’m all for a Constitutional amendment requiring a 2/3 vote of the People for all corporate and non-profit tax exemptions, personally.

    Most money for projects comes from a mix of sources, not just gas tax.

  5. But isn’t building a lane a “public transportation project?” If we can’t change the constitution, then change the definition…

    1. It’s hard, because the constitution actually says “highway”. We could just redefine rail transit as a special class of highways. :)

      1. The constitution says “highway purposes.” And if we go back to the ’76 MOA, it’s pretty clear that the purpose of the federally-funded center lanes are to act as reversible HOV express lanes (i.e., a “highway purpose”) until a plan for rail to use those lanes is viable. Purpose fulfilled.

      2. The ferries carry cars. Put an autotrain service in the mix and you’ve got an argument. And an MOA is pretty much worthless unless all parties agree. It’s an agreement to agree on some future agreement to be announced sometime in the future regarding something.

  6. Good start for Constitutional campaign, if one is necessary: A political movement composed of people like me, who believe from experience that better I can cross Lake Washington on public transit when I don’t need to drive my car, the faster I can drive the same bridge when I’ve got no choice.

    How about TDF- Transit for Driving Freedom!

    Mark Dublin

    1. Holy crap! I looked up Tom Tom Club and finally now know where Maria Carey sampled Fantasy from.

      Thanks! And write it down, this is the first time you’ve ever said anything that I didn’t regret immediately skipping over.

  7. I preferred an I-405 route from Sea-Tac, as I-405 is the most-congested corridor, as the ST 550 served the Bellevue to Seattle market quite frequently and quite well, while Metro’s #194 covered the Sea-Tac Airport to downtown better faster and more reliably than Central Link. Hopefully, someday, those along I-405 and those south to Tacoma will see something someday.

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