Legal wonks out there will appreciate this gem: Andrew Villeneuve at the Northwest Progressive Institute has a blistering takedown of Supreme Court Justice Jim Johnson’s dissent (PDF) in the Freeman case. Johnson, one of only two to vote against Sound Transit and WSDOT, largely framed his opinion around constitutional protections for drivers and cited the 18th Amendment extensively.
Andrew’s entire post is a treasure trove of transit legalese, so I’ll let it speak for itself. But I do want to pull out probably the single most important distinction in this entire case:
What the Johnsons do not acknowledge in their dissent – and what anti-rail conservatives either don’t get or won’t admit – is that the urban King County portion of Interstate 90 is not simply a highway. It is a multimodal corridor that contains a highway. And this distinction matters.
More below the jump.
One of the biggest arguments working in Sound Transit’s favor was that construction of the express lanes was paid for by federal funds, and done so under an agreement (.pdf) that high-capacity transit would one day have priority over those lanes. In other words, the design of the center lanes was for a multimodal corridor, one that would fulfill a multitude of purposes, highway, transit, and ped/bike alike.
I also want to make a couple of points about the lease of the center lanes to Sound Transit, which Andrew discusses near the bottom of the post. Justice Johnson asserts that WSDOT can’t lease any facility that is “presently needed,” based on his interpretation that the word “present” means “now” (i.e., this very instance). Two things:
- The 40-year airspace lease which allows East Link to take over center lanes does not go into effect until the start of revenue service. The determination of whether or not the facility is “presently needed” isn’t talking about the present time (i.e., now; as we speak) but what is applicable to the present time at that point in the future (i.e., the start of revenue service).
- When that does happen, the present need (i.e., a need for travel capacity) at that time will already be filled by both East Link itself and the addition of the outer HOV lanes. With that need filled, WSDOT has every right to carry through with the lease.
If Johnson’s interpretation of present need were the prevailing opinion, it would set an absolutely terrible precedent for state transportation policy. Agencies would be forced to make evaluations of future projects based on current travel conditions. This would fly in the face of everything we know about peak driving and the simultaneous rise in transit and ped/bike mode shares.
Luckily, the dissenting opinion was just that– a dissent. As Ben said last week, the majority opinion itself provides a very cogent, almost technical argument of why Sound Transit and WSDOT have every right to move forward with East Link. With that opinion ruling the day, we can finally look forward to Eastside rail with this last major political hurdle cleared.
29 Replies to “Rebutting Justice Johnson’s Dissent”
What is the legal statute / ruling that allows the state ferry system to be considered part of the Highway system?
Could that ruling / statute be interpreted to say that other moving vehicles (busses, Trains, cars) could be considered part of the highway system?
Unfortunately, ferries “which are a part of any public highway, county road, or city street” are called out specifically in the Eighteenth Amendment itself. Sorry.
Each ferry line that is considered part of a state highway is mentioned in a specific RCW describing that particular highway. For example, SR 304: http://apps.leg.wa.gov/RCW/default.aspx?cite=47.17.556
The ferry system is considered part of the highway system according to Amendment 18 Section 40b(5). Transit vehicles and trains have been excluded from receiving funds from gas tax money by appellate rulings. (IIRC there was a case decided in the early 1960s that prohibited gas tax money being spent on public transit.)
Partial quote of the 18th Amendment, Section 40 (with emphasis added):
All fees collected by the State of Washington as license fees for motor vehicles and all excise taxes collected by the State of Washington on the sale, distribution or use of motor vehicle fuel and all other state revenue intended to be used for highway purposes, shall be paid into the state treasury and placed in a special fund to be used exclusively for highway purposes.
I think the way around the 18th Amendment is to create sources of transit funding that aren’t collected by the State of Washington. Those funds wouldn’t then be subject to the restrictions of Amendment 18 and the cities or counties that collect those funds would be free to spend those funds on projects that would benefit public transportation. It might be difficult, however, for the cities and counties to gain the authority to impose those taxes and fees, but I don’t think that Section 40 (or the traffic jams it’s causing) are going away anytime soon.
If eastern Washington thinks MLK County is getting more than its share of highway funding, I would think they would go for allowing counties to take over some of the collection and use of gas tax.
The real solution is to have a broad definition of “highway purpose” which is never defined. Any mobility project or infrastructure is a highway purpose. Just create statute to divert funds. Then have Kemper Freeman sue and then have the Supreme Court conclude that yes, pretty much anything is a highway purpose.
Does that whole “presently needed” discussion have any bearing on the large swaths of WSDOT owned grassy wasteland (i.e. “park”) that Martin pointed out in his post on future land use potential around Rainier (Judkins/Jimi) Station? I believe he mentioned some federal level problems with doing anything useful with that land.
I don’t see any discussion of the I-90 parkland in the earlier articles… I’d be surprised if the feds object to its conversion because it’s not a wetland like Mercer Slough. The parkland was a mitigation for the highway impacts on the neighborhood, so the feds/state had a responsibility to build it but that doesn’t mean it has to remain as-is forever. However, I could see WSDOT and the city reluctant to convert it without a compelling case that it would be a public benefit rather than a detrement. I assume that TOD would only be fesable on certain parts of the parkland rather than all of it, so which parts are those? Any development would also need to ensure the trail remains functional.
In the first decade after the parkland was built, it was an extremely boring swath of grass and nothing else, a soulless place. But a month ago I walked through it again and discovered that the city has been busy installing poetry, plants, rocks, and playground amenities to break up the monotony. It looks pretty well-done now, and I’d hate to see the entire parkland eliminated. But there may be parcels somewhere where TOD could go, such as the big grassy area north of the main trail and east of Rainier.
BTW, my walk was from the Mt Baker Club north to Dose Terrace, then north on 30th Ave S (the first street on the ridge above MLK, which looks amazingly rural and old-Seattle), then west on the Mountains to Sound Trail which parallels the freeway and skirts around Beacon Hill and has a Korean (?) pagoda at one point, to the Jose Rizal Bridge. The trail continues west “to Holgate Street”, but instead I went across the bridge to 12th & Jackson. It’s a 2-mile walk and I would recommend it.
Another occasion, after the station meeting at the African American Museum, I walked east on the trail to Lake Washington, then backtracked west to 23rd and took the northern spur trail “to Dearborn Street”, which is when I saw most of the artwork and the playground. East of 23rd has a long ped/bike tunnel paralleling the I-90 auto tunnel, with some mediocre art along the walls, occasional people shouting to hear their voices echo, and a few dodgy characters, but it’s still worth seeing.
I think what MikeP was referring to was the last line fo the article https://seattletransitblog.wpcomstaging.com/2012/01/06/what-about-rainier-station/
I believe the lid parks are not only statutorily required to be parks, but also not engineered to hold structures.
The side parks are reserved for future capacity expansions.
Moreover, despite all my efforts parkland is very popular without much thought for the level of use.
The photo makes it painfully clear that if we hadn’t dropped the third span of the bridge in the water we would have a lot more space to allocate. Of course, cars would want it all, but there’d at least be more to go around.
There was never a third span filling the gap between the other two. The southern span (on the right in this photo) is a replacement, in the same location, as the original Lacey V Murrow floating bridge that sank in 1990. The northern I-90 span, known as the Homey M Hadley bridge, is sometimes referred to as the “Third Lake Washington Bridge” in the context that the “Second Bridge” refers to the Evergreen Point floating bridge (520).
Then it just seems odd that we didn’t fill that space. I’m not seeing any value to that strip of open water. Am I missing something?
Lanes aren’t cheap, weren’t needed and you’d basically need a fourth Mt. Baker tunnel.
Yes, I’m aware that capital projects cost money. And I’m sure there are thousands of people who would argue that more lanes are needed.
I’m pointing out the relative value of a strip of open water between two floating bridges and any other strip of open water on Lake Washington. Open space on the water isn’t cheap, nor is space on each shore that’s being underutilized.
Compare the relative value of the open water in the picture to the relative value of Foster Island in Union Bay by the UW. Which one is more costly to pave over?
I’m just confused as to why the Hadley bridge wasn’t built closer to the Murrow bridge. It’s not worth fighting now but it strikes me as weird.
I have no specific knowledge, and am reaslly just speculating. I can think of at least four reasonable reasons to build as they did.
1. Perhaps it avoided having to by as much land at the landfalls. It’s worth pointing out that the shoreline between the bridges is still in use, at least on the MI side.
2. Perhaps it made interfaces at the shore easier.
3. Perhaps having space between the bridges available made construction easier — remember while the Hadly bridge was being built, the very overcrowdeed, fairly narrow first bridge was in full time use. It would almost certainly have been unacceptable to close a lane on it.
4. Given that they are seperate structures, perhaps there’s some requirement for lateral separation of the anchor cables. Or perhaps some separation [although clearly not this much] is required for resilience in the face of lateral movement.
Relating to #4, if one of the bridges sinks, you wouldn’t want it fouling the anchor cables of the the other bridge. There is, of course, precedent for such an event.
I don’t know why we have a bridge there at all. The amount of time and number of miles it saves versus just going around the south end of Lake Washington are minuscule.
Even more fundamental than the multimodal corridor argument, I’ve never understood why ST didn’t just repeatedly argue that transit is a legitimate “highway purpose.” Not as a lone argument, of course, but as an additional argument. There’s nothing in any dictionary definition that precludes a highway from carrying trains, anymore than Eastlake is no longer a street simply because it now has streetcar tracks on it. Moreover, the enumerated “highway purposes” in the amendment are not introduced as an exclusive list.
The Washington Supreme court decided that transit isn’t a “highway purpose” back in 1969. [O’Connell v. Slavin]. ST could, of course, have tried to get that relitigated, but I don’t rate their chances of success highly.
People always cite that case, but that was a bigger issue. In that instance the government was trying to draw from the motor vehicle fund for, in essence, a Seattle transit master plan—a much more tangential use—and claiming that improving public transit anywhere bettered the state’s roads by reducing congestion, wear and tear, etc. (Oh, for that legislature today.)
Arguing that transit (or, implicitly, anything) can be funded from the Motor Vehicle Fund if it merely benefits highways is a thornier proposition than simply arguing that a particular project can be funded from the Motor Vehicle Fund because it is the highway, or at least a legitimate use of the highway itself that doesn’t necessarily undermine the highway’s essential highway-ness.
In short, people won’t look at Link on I-90 and say, “Look, there’s a highway and a trainway crossing the lake.” They’ll look at Link and say, “Look, a train runs on that highway,” or, “That highway has cars and buses and trains on it.”
Now the majority did decide on both fronts, but even in O’Connell the dissenting judge noted what I did above, that “the purposes listed in section 40 are not exclusive, but that they are, in effect, simply exemplary, and that the section is to be liberally construed.”
He later added (my emphasis): “A highway, in essence, certainly involves the right of public user accompanied by the duty of public maintenance. Although the horse and buggy era is part of the past, and even the surrey with the fringe on top is outmoded, other forms of public transport and highway use are conceivable. Neither the common nor the legal understanding of the term “highway” is restricted to land transport in self-propelled vehicles.”
And, finally (my emphasis again, and note that he actually did buy the “benefit” test as well): “Since neither the common nor the legal understanding of ‘highway purposes’ is restricted to the physical construction and maintenance of roadways for vehicles driven by petroleum-fueled internal-combustion engines as they were operated and administered in 1944, and since I think that the benefit test ought not to be ignored or abandoned sub silentio, I find the majority opinion to be an unsatisfactory rationalization of an ad hoc finding of unconstitutionality.”
It certainly seems worth a shot to see if four more judges might agree with him 45 years later. Our understanding of the public right-of-way has certainly evolved since 1969.
Wait a couple of years and I expect O’Connell would be effectively overturned. (Probably not *literally* overturned, judges avoid doing that, but “distinguished” until it applies to nothing.) The common-law definition of highway is old, and includes things like sidewalks and bike paths….
This has nothing to do with the Supreme Court stretching the definition of “highway purpose”. It has everything to do with the Memorandum of Agreement which ended the Alternatives Analysis of the I-90 project planning that occurred in Seattle in the 1970’s.
The MOA states clearly that the center reversible roadway was from the first planned to be converted at some time to a fixed guideway transit facility. A specific technology was not mentioned, but it specifically allowed for steel wheels on steel rails. There had been consideration of a heavy rail line to Eastgate as one of the alternatives.
Since the Federal grant moneys — and remember this was in the hale and halcyon era of almost automatic 90/10 funding splits — paid for the bridge structure (the state’s contribution was the lids on Mercer Island and east of 23rd), no Washington gas tax money is being “diverted” by converting the reversible lanes.
I don’t think anyone expressed any confusion about how or why the court ruled the way it did. The post sparked separate conversations about using the MVF for transit.
The Memorandum of Agreement is not binding, and does not supersede state law.
Why would the state enter into the MOA if they thought it was contrary to law?
They obviously didn’t. But states occasionally pass conflicting laws, and then courts sort out the resulting lawsuits.
While the MOA itself may not have been binding, it’s conceivable that there were strings attached to the Federal money that required that this conversion be permissible. I’ve certainly heard suggestions to that effect, but in contexts where it is entirely conceivable, perhaps even probable, that they were mere wishful thinking. If this is the case, then presumably the time for objections was back when the money was used, not this late date.
There were strings attached to the federal money which required the lanes to be available for “fixed guideway” transit. Accordingly, if Johnson’s view had prevailed, *the state would have had to return the federal money with interest*. That would have been bad.
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