Dissecting conservative Justice Jim Johnson’s dissenting opinion in Freeman v. State

Yes­ter­day’s sev­en-to-two deci­sion in Free­man et al. v. State of Wash­ing­ton et al. was a pret­ty resound­ing vic­to­ry for the peo­ple of Wash­ing­ton and two pub­lic agen­cies that build and main­tain trans­porta­tion infra­struc­ture on the peo­ple’s behalf (Sound Tran­sit and the Wash­ing­ton State Depart­ment of Transportation).

But it was­n’t a unan­i­mous deci­sion. The court’s two John­sons — Jim and Charles — filed a dis­sent­ing opin­ion in which they strong­ly endorsed Free­man’s posi­tion and argued that the major­i­ty were set­ting a bad precedent.

I had an expect­ed a dis­sent — in the event of a vic­to­ry for sense and tran­sit — from Jim John­son, who is eas­i­ly the court’s most con­ser­v­a­tive jus­tice. (John­son coau­thored Tim Eyman’s I‑747 with Rob McKen­na in 2001, and is rarely in agree­ment with his col­leagues on a case of con­sti­tu­tion­al importance).

But I had not expect­ed to see Charles John­son’s name as a sig­na­to­ry to Jim John­son’s dis­sent. Appar­ent­ly, he found for­mer Supreme Court Jus­tice Phil Tal­madge’s argu­ments com­pelling. (Tal­madge, a long­time mem­ber of the let’s get rid of Sound Tran­sit camp, argued the case on behalf of Kem­per Free­man, Jr. )

In their opin­ion, the John­sons echo sev­er­al of the unsub­stan­ti­at­ed claims that Tal­madge made dur­ing oral argu­ment and in his writ­ten pleadings.

I’d like to take an oppor­tu­ni­ty to explain why we at NPI think the major­i­ty’s deci­sion is sound, and why the John­sons’ dis­sent is off-base.

I won’t fisk every last pas­sage of their opin­ion, but I’ll be excerpt­ing quite a bit, so this will be a fair­ly long post. You have been warned!

Let’s begin, shall we? Here’s the John­sons’ open­ing paragraph:

This court once again erodes the guar­anties of the Wash­ing­ton State Con­sti­tu­tion’s 18th Amend­ment, which pre­vents the diver­sion of gas tax, vehi­cle reg­is­tra­tion, and relat­ed funds for non­high­way pur­pos­es. Con­sti­tu­tion­al amend­ments allow a con­cerned cit­i­zen­ry to bind future pol­i­cy­mak­ers, pre­vent­ing fleet­ing polit­i­cal designs from under­min­ing our most deeply root­ed prin­ci­ples. As the State’s high­est court, it is our sworn respon­si­bil­i­ty to safe­guard all pro­vi­sions of the Con­sti­tu­tion, includ­ing those that may appear incon­ve­nient or polit­i­cal­ly unfavored.

I would argue that the Con­sti­tu­tion in its entire­ty allows for what the John­sons are talk­ing about — not just the amend­ments. Our Con­sti­tu­tion serves as a plan of gov­ern­ment for our state. It describes how Wash­ing­ton is to be gov­erned. All of its pro­vi­sions are impor­tant, not just the few that con­ser­v­a­tives love to cite.

For exam­ple, Arti­cle II, Sec­tion 22 — which we’ve cit­ed pret­ty reg­u­lar­ly over the years — says pret­ty clear­ly that leg­is­la­tion shall pass by major­i­ty rule. It says that because the Founders want­ed our Leg­is­la­ture to be a demo­c­ra­t­ic insti­tu­tion. They knew that a bal­ance had to be struck between major­i­ty rule and minor­i­ty rights. So they cre­at­ed a super­ma­jor­i­ty require­ment for amend­ing the Con­sti­tu­tion and express­ly stat­ed that major­i­ty votes would decide the fate of ordi­nary legislation.

Begin­ning in the ear­ly 1990s, right wing activists and the state’s busi­ness lob­by became fix­at­ed on requir­ing a two-thirds thresh­old for rais­ing rev­enue. But iron­i­cal­ly, they did not pro­pose a con­sti­tu­tion­al amend­ment because get­ting a two-thirds vote in each house of the Leg­is­la­ture for any­thing is difficult.

Instead, they asked vot­ers to adopt the two-thirds scheme as a statute, first with I‑601 in 1993, which nar­row­ly passed while an even worse iter­a­tion, I‑602, failed. Tim Eyman lat­er sought to reen­act I‑601 with I‑960, I‑1053, and I‑1185.

A statute can­not con­tra­vene the Con­sti­tu­tion; the Con­sti­tu­tion is the supreme law of the state. But that did­n’t mat­ter to Lin­da Smith and the crew behind I‑601, nor was it a con­cern of Tim Eyman and his wealthy benefactors.

Sad­ly, when teach­ers, par­ents, and leg­is­la­tors brought a jus­ti­cia­ble case against I‑601/I‑960/I‑1053/I‑1185, the John­sons refused to join the Court’s major­i­ty in uphold­ing our Con­sti­tu­tion and strik­ing down the two-thirds require­ment.

Charles John­son wrote a dis­sent in which he argued the Court should not decide the case on the mer­its, while Jim John­son wrote a dis­sent which pre­sent­ed a flawed, out­right defense of the four ini­tia­tives… or should I say fleet­ing polit­i­cal designs, designs that were under­min­ing our most deeply root­ed principles. 

I bring up the LEV case here because I find it iron­ic that the John­sons make the sanc­ti­ty of our state’s Con­sti­tu­tion the focus of their open­ing remarks in this deci­sion. Where was their con­cern for our Con­sti­tu­tion when League of Edu­ca­tion Vot­ers was being decid­ed? If ever there was a case in which our Con­sti­tu­tion need­ed defend­ing against fleet­ing polit­i­cal designs, that was it.

But sad­ly, nei­ther of them were will­ing to uphold Arti­cle II, Sec­tion 22.

Here, the John­sons sug­gest that their col­leagues are allow­ing the 18th Amend­ment to be under­mined by giv­ing Sound Tran­sit and WSDOT the green light to go ahead with their planned realign­ment of Inter­state 90 across Lake Washington.

The projects the agen­cies are work­ing on now will result in two high occu­pan­cy vehi­cle lanes being added next to the exist­ing east and west gen­er­al pur­pose lanes and the con­struc­tion of train tracks for light rail on the por­tion of the Homer M. Hadley Memo­r­i­al Bridge that we call the express lanes today.

The project to build the new HOV lanes is known as R‑8A (Two-Way Tran­sit and HOV Oper­a­tions) and the project to bring light rail to the East­side is known as East Link. R‑8A is a WSDOT project; East Link is a Sound Tran­sit project.

The 18th Amend­ment, for those unfa­mil­iar with the Wash­ing­ton State Con­sti­tu­tion, is a set of pro­vi­sions approved in 1944 which says that gas tax­es and cer­tain vehi­cle fees may only be used for high­way pur­pos­es. John­son excerpts the amend­ment in his opin­ion; I’m going to go ahead and repro­duce the whole thing here:

SECTION 40. HIGHWAY FUNDS. 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. Such high­way pur­pos­es shall be con­strued to include the following:

1. The nec­es­sary oper­at­ing, engi­neer­ing and legal expens­es con­nect­ed with the admin­is­tra­tion of pub­lic high­ways, coun­ty roads and city streets;
2. The con­struc­tion, recon­struc­tion, main­te­nance, repair, and bet­ter­ment of pub­lic high­ways, coun­ty roads, bridges and city streets; includ­ing the cost and expense of (1) acqui­si­tion of rights-of-way, (2) installing, main­tain­ing and oper­at­ing traf­fic signs and sig­nal lights, (3) polic­ing by the state of pub­lic high­ways, (4) oper­a­tion of mov­able span bridges, (5) oper­a­tion of fer­ries which are a part of any pub­lic high­way, coun­ty road, or city street;
3. The pay­ment or refund­ing of any oblig­a­tion of the State of Wash­ing­ton, or any polit­i­cal sub­di­vi­sion there­of, for which any of the rev­enues described in sec­tion 1 may have been legal­ly pledged pri­or to the effec­tive date of this act;
4. Refunds autho­rized by law for tax­es paid on motor vehi­cle fuels;
5. The cost of col­lec­tion of any rev­enues described in this sec­tion: Pro­vid­ed, That this sec­tion shall not be con­strued to include rev­enue from gen­er­al or spe­cial tax­es or excis­es not levied pri­mar­i­ly for high­way pur­pos­es, or apply to vehi­cle oper­a­tor’s license fees or any excise tax imposed on motor vehi­cles or the use there­of in lieu of a prop­er­ty tax there­on, or fees for cer­tifi­cates of own­er­ship of motor vehicles.

Con­ser­v­a­tives love the 18th Amend­ment because it guar­an­tees that cer­tain types of rev­enue can only be used to build and main­tain high­ways, as opposed to rail infra­struc­ture or bike paths. They argue that Inter­state 90 was built and main­tained with rev­enue col­lect­ed exclu­sive­ly for high­way pur­pos­es, and there­fore, Sound Tran­sit and WSDOT’s plans for the cor­ri­dor (which cen­ter around the con­struc­tion of East Link) run afoul of the afore­men­tioned Sec­tion 40.

In their legal plead­ings and in pub­licly post­ed com­men­tary, Kem­per Free­man, Phil Tal­madge, Tim Eyman, Michael Dun­mire have depict­ed WSDOT and Sound Tran­sit as utter­ly uncon­cerned about the 18th Amendment.

In real­i­ty, both agen­cies are well aware of Sec­tion 40, and they planned out the improve­ments to I‑90 so as to com­ply with its requirements.

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.

Because Lake Wash­ing­ton sits between Seat­tle and the East­side, there is no street grid con­nect­ing the city and its sub­urbs. There are only two sets of bridges that cross the lake: the ones that car­ry Inter­state 90 and State Route 520.

Both were orig­i­nal­ly designed for auto­mo­bile traf­fic, but when I‑90 was redesigned, it was redesigned as a mul­ti­modal corridor.

The same thing is hap­pen­ing with SR 520 now.

What do I mean by mul­ti­modal? I mean capa­ble of car­ry­ing more than just auto­mo­bile traf­fic. Cor­ri­dors that are only designed for cars force peo­ple to dri­ve instead of giv­ing them trans­porta­tion choic­es. And that’s bad.

If you’ve ever dri­ven I‑90 over Lake Wash­ing­ton, you’ve prob­a­bly noticed there is a path­way on one side for bicy­cle and pedes­tri­an traf­fic. This path­way is part of a trail that runs par­al­lel to the high­way, allow­ing peo­ple on foot or on bike to safe­ly tra­verse the cor­ri­dor. Peo­ple who use the path, of course, are very famil­iar with its exis­tence. SR 520 does not have a sim­i­lar cross-lake path, but it soon will.

You may have also noticed the bus and HOV ramps that per­mit Metro and Sound Tran­sit bus­es to enter and exit I‑90 with­out hav­ing to wait in traffic.

For exam­ple, there are ramps con­nect­ing the Down­town Seat­tle Tran­sit Tun­nel (DSTT) to I‑90; ramps at the Island Crest Way exit to facil­i­tate bus access to the Mer­cer Island Tran­sit Cen­ter, ramps at Belle­vue Way, ramps at the East­gate Park & Ride, plus the new Sun­set inter­change in Issaquah. Some of these are bus-only; oth­ers are also open to high occu­pan­cy vehi­cle (HOV) traffic.

As I said above, when Inter­state 90 was redesigned, it was redesigned as a mul­ti­modal cor­ri­dor, and the major­i­ty of the bill for the recon­struc­tion of the cor­ri­dor was paid by the fed­er­al gov­ern­ment — with the under­stand­ing that when the region had its act togeth­er, the cor­ri­dor would include high capac­i­ty transit.

In fact, the 1974 Mem­o­ran­dum of Under­stand­ing (PDF) on I‑90 between the cities of Seat­tle, Mer­cer Island, Belle­vue, King Coun­ty, and the state explic­it­ly refers to the express lanes as “tran­sit road­way” and fur­ther states:

2. The I‑90 facil­i­ty shall be designed and con­struct­ed so that con­ver­sion of all or part of the tran­sit road­way to fixed guide­way [rails] is possible.

The time has now come to con­vert that tran­sit road­way to a fixed guide­way. This is exact­ly what Sound Tran­sit and WSDOT are doing: car­ry­ing out the terms of that 1974 agree­ment, amend­ed in 2004 (PDF).

Up until the peo­ple of Puget Sound cre­at­ed Sound Tran­sit, the region had no viable plan for putting high capac­i­ty tran­sit on I‑90 and no agency to car­ry out such a plan. Now we do, and the prospect of a region­wide light rail sys­tem real­ly, real­ly both­ers the likes of Free­man, Tal­madge, and Eyman.

They pulled out all the stops to try and pre­vent Cen­tral Link from being built, but they failed. Cen­tral Link opened to great fan­fare in July 2009; Air­port Link brought Cen­tral Link into SeaT­ac Inter­na­tion­al Air­port five months lat­er.

After their schemes to kill Cen­tral Link were stymied, Free­man & Co. shift­ed their efforts toward thwart­ing any expan­sion of the Link sys­tem, in the courts and in the court of pub­lic opin­ion. They played a role in defeat­ing Roads & Tran­sit in 2007, but Sound Tran­sit went back to the bal­lot by itself the fol­low­ing year, and Sound Tran­sit 2 (on the bal­lot as Propo­si­tion 1) passed hand­i­ly despite their fierce oppo­si­tion.

Tim Eyman and Kem­per Free­man then tried to stop light rail from cross­ing Lake Wash­ing­ton by bury­ing an anti-East Link pro­vi­sion in I‑1125. Unfor­tu­nate­ly for them, vot­ers reject­ed I‑1125. And, of course, there have been the lawsuits.

Free­man has now gone to court twice twice alleg­ing that WSDOT was vio­lat­ing the 18th Amend­ment. Both times, the Supreme Court’s final judg­ment has gone against him, although in this case, Free­man has the sup­port of the Johnsons.

Free­man and his camp don’t want the con­ver­sion to occur — for no good rea­son. Their only objec­tion is their irra­tional hatred of tran­sit. They’re just using the 18th Amend­ment as a pre­text for try­ing to get the courts to halt the conversion.

They say they believe in the free­dom of the auto­mo­bile, but East Link’s con­struc­tion won’t hurt any­one’s abil­i­ty to dri­ve across Lake Wash­ing­ton or any­where else. In truth, it will help, because peo­ple who choose to take the train won’t be dri­ving, so there will be few­er cars on the road than there oth­er­wise would have been.

In addi­tion, Sound Tran­sit is con­tribut­ing the major­i­ty of funds to build R‑8A, so the high­way por­tion of Inter­state 90 will still con­sist of eight lanes after East Link is built. The new HOV lanes will open pri­or to the clo­sure of the express lanes.

Nat­u­ral­ly, WSDOT is involved since it is respon­si­ble for the main­te­nance and oper­a­tions of the facil­i­ty. But the state’s high­way fund isn’t being tapped to make East Link a real­i­ty. High­way funds are only being used to improve the highway.

So what’s the prob­lem? Back to the Johnsons:

The respon­dents attempt to cir­cum­vent these clear restric­tions on the use of the MVF by doing indi­rect­ly what they can­not do directly.

The major­i­ty accepts their argu­ment that the 18th Amend­ment is not impli­cat­ed if the MVF is reim­bursed by the enti­ty buy­ing or leas­ing the high­way lands. How­ev­er, this rea­son­ing imper­mis­si­bly trans­forms the MVF into a fund­ing source for non­high­way purposes.

The major­i­ty’s rea­son­ing does no such thing. There have (and until such a time pass­es when Sec­tion 40 is amend­ed or repealed) will con­tin­ue to be explic­it restric­tions on rev­enue col­lect­ed for high­way purposes.

The Court’s rul­ing in this case does not weak­en the Con­sti­tu­tion. It is a defeat for oppo­nents of light rail, to be sure. But it is not a defeat for the 18th Amendment.

John­son writes as if the 18th Amend­ment exists to make sure that high­way lands are nev­er used for any­thing but high­ways. But the 18th Amend­ment is con­cerned with mon­ey, not land use. It places restric­tions on high­way funds. It does­n’t place restric­tions on how high­way facil­i­ties can be used once built.

Con­se­quent­ly, state law per­mits the Depart­ment of Trans­porta­tion to lease unused or unneed­ed high­way lands — albeit under cer­tain conditions.

(The John­sons argue WSDOT isn’t meet­ing the con­di­tions and is thus vio­lat­ing state law; we’ll delve into that in a bit).

The John­sons go on to allege that the 18th Amend­ment is being vio­lat­ed because WSDOT is plan­ning to spend mon­ey on R‑8A along with Sound Tran­sit. They claim:

The “East Link” project, as cur­rent­ly con­tem­plat­ed, most cer­tain­ly puts MVF funds at risk in vio­la­tion of the 18th Amendment.

Although the “R‑8A” project would not be imple­ment­ed but-for Sound Tran­sit’s East Link project, the record reflects that the Wash­ing­ton State Depart­ment of Trans­porta­tion (WSDOT) has still promised to fund por­tions of the construction.

For exam­ple, under the “umbrel­la agree­ment,” WSDOT pro­pos­es to spend $44.4 mil­lion in fund­ing for the R‑8A project, which includes an esti­mat­ed $10.5 mil­lion for con­struc­tion of “dow­el bar retrofits.”

In oth­er words, at least 44.4 mil­lion tax­pay­er dol­lars have been promised by the State to pre­pare the Inter­state 90 (I‑90) bridge for con­struc­tion of the East Link project.

Under O’Con­nell, any appro­pri­a­tion of mon­ey from the MVF to sat­is­fy this oblig­a­tion will run afoul of the 18th Amendment.

Where is the evi­dence to sub­stan­ti­ate the alle­ga­tion that WSDOT is covert­ly and ille­gal­ly help­ing Sound Tran­sit with East Link con­struc­tion costs? R‑8A is not part of East Link. It is a project to improve I‑90’s high­way con­fig­u­ra­tion ahead of the onset of con­struc­tion for light rail expan­sion. Do the John­sons not under­stand this?

Pub­lic works projects are cer­tain­ly com­pli­cat­ed things. For any­one read­ing who’s still con­fused, here’s a fresh expla­na­tion of what’s hap­pen­ing to Inter­state 90.

WSDOT and Sound Tran­sit are work­ing col­lab­o­ra­tive­ly togeth­er to make a num­ber of improve­ments to the bridges that con­nect Mer­cer Island to the east and west shores of Lake Wash­ing­ton, as well as the struc­ture that car­ries Inter­state 90 through the island. When the asso­ci­at­ed projects are com­plete, the cor­ri­dor will serve the trav­el­ing pub­lic more effi­cient­ly and effec­tive­ly. In addi­tion to the bike and pedes­tri­an path, which isn’t going any­where, there will be:

• After R‑8A is built: Six gen­er­al pur­pose lanes, just like there are today
• After R‑8A is built: Two high occu­pan­cy vehi­cle (HOV) lanes, one west­bound and one east­bound, adja­cent to the gen­er­al pur­pose lanes
• After East Link is built: Two sets of train tracks will be locat­ed where the express lanes are today. They will car­ry East Link light rail trains.

The high­way por­tion of Inter­state 90 will ben­e­fit from the planned recon­fig­u­ra­tion. And high­way users will ben­e­fit. High­way funds will only be used to improve the high­way por­tion. As Jus­tice Mad­sen writes in a foot­note of the major­i­ty opinion:

The dis­sent con­tends that MVF funds are at risk because WSDOT has promised to spend $44 mil­lion on the R‑8A project.

The dis­sent asserts that WSDOT would not oth­er­wise spend this mon­ey but for the light rail construction.

How­ev­er, the record reveals that the light rail con­struc­tion sim­ply afford­ed WSDOT an oppor­tu­ni­ty to imple­ment R‑8A, which was the pre­ferred plan that focused on the non­rail tran­sit lanes.

More impor­tant­ly, the appel­lants have not shown that these MVF funds will be used for the light rail con­struc­tion. Thus, the appel­lants have not met their bur­den of show­ing a vio­la­tion of Arti­cle II, Sec­tion 40.

Back to the Johnsons:

I also ques­tion whether Sound Tran­sit’s oblig­a­tions under the umbrel­la agree­ment ful­ly reim­burse the tax­pay­ers for the val­ue of the cen­ter lanes when occu­pied by trains.

Sound Tran­sit’s esti­mat­ed pay­ment of $165.7 mil­lion to fund the con­struc­tion of the new HOV (high occu­pan­cy vehi­cle) lanes on the 1–90 out­er road­way will be cred­it­ed against the amounts owed WSDOT for the light rail use of the cen­ter lanes.

In a true arm’s length lease, it is incon­ceiv­able that the mod­i­fi­ca­tions need­ed to make the prop­er­ty usable to the lessee, but which pro­vide no ben­e­fit what­so­ev­er to the lessor, would be cred­it­ed against the rent due under the lease. It appears improp­er that the mon­ey paid by Sound Tran­sit to replace the HOV lanes will be cred­it­ed against its own rental oblig­a­tions under the lease.

I’m assum­ing that when John­son says “the tax­pay­ers”, he’s talk­ing about state tax­pay­ers, many of whom are also Sound Tran­sit tax­pay­ers. (The Sound Tran­sit tax­ing dis­trict cov­ers the urban por­tions of King, Pierce, and Sno­homish coun­ties). The tax­pay­ers of urban Puget Sound approved East Link in 2008 and helped nix Tim Eyman’s plan to inter­fere with it in 2011. The John­sons do not men­tion or dis­cuss these events. The well-argued and well-researched major­i­ty opin­ion does.

The John­sons are wrong that the recon­fig­u­ra­tion of I‑90 will not ben­e­fit the trav­el­ing pub­lic that WSDOT (the lessor) serves.

As I have pre­vi­ous­ly stat­ed, the improve­ments planned to Inter­state 90 will ben­e­fit all users, espe­cial­ly motorists. The com­ple­tion of R‑8A will improve cross-lake traf­fic, ensur­ing that there is always a high occu­pan­cy vehi­cle lane avail­able to bus­es, van­pools, and car­pools. WSDOT’s data shows that the reversible lanes have out­lived their use­ful­ness. These days, traf­fic flows more equal­ly in both direc­tions, and ded­i­cat­ed HOV lanes are need­ed that go east and west at all times.

Sound Tran­sit has good rea­son to want to help WSDOT with R‑8A. Both agen­cies want to improve traf­fic flow on I‑90 soon­er rather than later.

The John­sons do not acknowl­edge this, but Sound Tran­sit hap­pens to oper­ate bus ser­vice in addi­tion to train ser­vice. Routes like the 550 and the 554 go over I‑90 and will be able to use the new HOV lanes when they become available.

It so hap­pened that Sound Tran­sit had the mon­ey to get R‑8A start­ed, and con­se­quent­ly, it was agreed that Sound Tran­sit would shoul­der the major­i­ty of the costs, and in return, WSDOT would reduce the amount of mon­ey Sound Tran­sit would owe for its lease of the tran­sit road­way. This is a great exam­ple of fruit­ful inter-agency coop­er­a­tion that should be viewed as a vic­to­ry for tax­pay­ers and for sense, not as a shad­owy plot to under­mine the 18th Amendment.

The build­ing of East Link, mean­while, will ful­fill — at long last! — the vision for the cor­ri­dor that our region’s polit­i­cal lead­er­ship out­lined decades ago when they request­ed fed­er­al fund­ing to rebuild the corridor.

By tak­ing cars off the high­way, East Link will lessen con­ges­tion on Inter­state 90, mak­ing every­one’s com­mute more pleas­ant. Those who still choose to dri­ve won’t have to share the road with so many oth­er motorists, and those who choose to take the train will be able to get back and forth across the lake reli­ably and com­fort­ably with­out hav­ing to con­cen­trate on the road. Every­one wins.

Well, every­one except peo­ple who hate light rail.

The final pages of the John­sons’ dis­sent­ing opin­ion are devot­ed to a dis­cus­sion of RCW 47.12.120, the statute that gives WSDOT the author­i­ty to lease high­way lands. This sec­tion pro­vides that “The depart­ment [WSDOT] may rent or lease any lands, improve­ments, or air space above or below any lands that are held for high­way pur­pos­es but are not present­ly needed.”

The John­sons argue that since WSDOT has deter­mined that the express lanes are “present­ly need­ed”, WSDOT can­not arrange to turn the road­way they occu­py over to Sound Tran­sit at a future date — even if the future date is after the com­ple­tion of the new HOV lanes that are being built. They contend:

It has been well estab­lished that the cen­ter lanes to the 1–90 bridge are high­way lands that are “present­ly need­ed” under the statute. In fact, this point was con­ced­ed by WSDOT in discovery.

[…]

Thus, accord­ing to the plain mean­ing of the words “present­ly need­ed” as they appear in RCW 47.12.120, WSDOT may not con­tract to lease the cen­ter lanes of 1–90 at a future date. Rather, a deter­mi­na­tion of whether high­way lands are “present­ly need­ed” must be made con­tem­po­ra­ne­ous­ly with any con­tract to lease high­way property.

They go on to say:

WSDOT is only autho­rized to lease high­way lands that are unnec­es­sary for high­way pur­pos­es now—not at some point after the con­struc­tion of the out­er HOV lanes. At this moment in time, the cen­ter HOV lanes are both nec­es­sary and reg­u­lar­ly used by the public.

In fact, it is dif­fi­cult to imag­ine any prop­er­ty in the entire state of Wash­ing­ton that is need­ed for high­way pur­pos­es more than the two cen­ter lanes of the I‑90 bridge dur­ing any dai­ly rush hours.

Fur­ther­more, WSDOT already con­ced­ed that the lanes are present­ly need­ed for high­way purposes.

Any deter­mi­na­tion that the lanes are not present­ly need­ed for high­way pur­pos­es is clear­ly arbi­trary and capricious.

As far as the John­sons are con­cerned, the umbrel­la agree­ment between Sound Tran­sit is “unlaw­ful, indeed uncon­sti­tu­tion­al, and should be held void.”

The John­sons’ sev­en col­leagues reached a very dif­fer­ent con­clu­sion. Writ­ing for the major­i­ty, Jus­tice Bar­bara Mad­sen reasoned:

The appel­lants assert that whether a high­way is present­ly need­ed must relate to the need at that moment, not a point in the future.

Accord­ing­ly, the appel­lants argue that WSDOT can­not lease the cen­ter lanes in the future because the lanes are cur­rent­ly in use and present­ly need­ed. This argu­ment ignores that pos­ses­sion and con­trol of the cen­ter lanes will not be trans­ferred to Sound Tran­sit until after the cen­ter HOV lanes are replaced by out­er HOV lanes.

The lease is con­tin­gent upon this, at which point the lanes will not be “present­ly need­ed” under RCW 47.12.120 because they will be replaced. As the fed­er­al high­way admin­is­tra­tion not­ed, “[t]here will be no net loss of HOV lanes.”

Fur­ther­more, fol­low­ing the appel­lants’ inter­pre­ta­tion would severe­ly lim­it WSDOT’s author­i­ty to enter into con­tracts that may rely on future con­tin­gen­cies, such as in the present case.

The major­i­ty goes on to say:

The arbi­trary and capri­cious or con­trary to law stan­dard requires more than a show­ing that WSDOT has erred; it requires that WSDOT act­ed will­ful­ly and unrea­son­ably, with­out con­sid­er­a­tion and in dis­re­gard of facts and circumstances.

In this case, WSDOT con­sid­ered numer­ous stud­ies and engaged in exten­sive plan­ning, as iden­ti­fied in the Umbrel­la Agreement.

Con­sid­er­a­tions includ­ed the “I‑90 Two-Way Tran­sit and HOV Oper­a­tions FEIS [(Final Envi­ron­men­tal Impact State­ment)] and ROD [(Record of Deci­sion)]; I‑90 Two-Way Tran­sit and HOV Access Point Deci­sion Report; WSDOT I‑90 Cen­ter Road­way Study; East Link FEIS and ROD; East Link/I‑90 Inter­change Jus­ti­fi­ca­tion Report; I‑90 Belle­vue to North Bend Cor­ri­dor Study; the WSDOT High­way Sys­tem Plan 2007–2026, and the leg­isla­tive his­to­ry reflect­ed in the 2009 Engrossed Sen­ate Sub­sti­tute Bill 5352, § 204(3) and § 306(17).”

Tak­ing all of the stud­ies and his­tor­i­cal mate­ri­als into con­sid­er­a­tion, WSDOT exe­cut­ed its agree­ment with Sound Tran­sit. A review of stud­ies sup­ports the respon­dents’ con­tentions that WSDOT engaged in a care­ful eval­u­a­tion of the need of the cen­ter lanes at the time of transfer.

We agree with this analysis.

Like the major­i­ty says, Sound Tran­sit is not going to begin leas­ing I‑90’s tran­sit road­way until after the R‑8A project has been com­plet­ed. WSDOT has deter­mined that, after that point, the tran­sit road­way will no longer be need­ed because the express lanes will have been replaced by two new HOV lanes that can car­ry bus­es, van­pools, and car­pools in each direc­tion twen­ty-four sev­en. This con­fig­u­ra­tion will bet­ter serve the needs of the trav­el­ing public.

The Mem­o­ran­dum of Under­stand­ing that gov­erns the design of Inter­state 90 says that there are to be a max­i­mum of eight lanes. Once the new HOV lanes are com­plet­ed and oper­a­tional, the express lanes won’t be need­ed any longer, and they can be turned over to Sound Tran­sit for East Link’s use.

The John­sons argue that WSDOT can­not make a deter­mi­na­tion about the express lanes now because of the “present­ly need­ed” lan­guage in RCW 47.12.120. Under their inter­pre­ta­tion, WSDOT lacks the author­i­ty to plan for the future.

The John­sons base their inter­pre­ta­tion on the dic­tio­nary def­i­n­i­tions of the words present­ly and need­ed, since the RCW does­n’t define them:

“When a statu­to­ry term is unde­fined, the words of a statute are giv­en their ordi­nary mean­ing, and the court may look to a dic­tio­nary for such mean­ing.” State v. Gon­za­lez, 168 Wn.2d 256, 263, 226 P.3d 131 (2010).

“[P]resently” is defined as “at the present time : at present : at this time : NOW . . : imme­di­ate­ly.” Web­ster’s Third New Inter­na­tion­al Dic­tio­nary 1793 (2002).

“[N]eeded” is defined as “be nec­es­sary … : REQUIRE … : be under neces­si­ty or oblig­a­tion to.” Id. at 1512.

Thus, WSDOT is only autho­rized to lease high­way lands that are unnec­es­sary for high­way pur­pos­es now—not at some point after the con­struc­tion of the out­er HOV lanes.

Note that I’ve left the legal ref­er­ences intact in the excerpt above, since the John­sons are ref­er­enc­ing def­i­n­i­tions and cit­ing prece­dent for the courts’ author­i­ty to look to dic­tio­nar­ies to deci­pher the mean­ing of words not defined in statute.

Once again, the John­sons have come up short. What they don’t con­cede in their dis­sent is that the word present­ly has anoth­er mean­ing. I looked up the word in Ran­dom House Unabridged, and found these two def­i­n­i­tions:

pres·ent·ly [prez-uhnt-lee]
adverb

1. in a lit­tle while; soon: They will be here present­ly.
2. at the present time; now: He is present­ly out of the coun­try.

The usage note states:

The two appar­ent­ly con­tra­dic­to­ry mean­ings of present­ly, “in a lit­tle while, soon” and “at the present time, now,” are both old in the lan­guage. In the lat­ter mean­ing present­ly dates back to the 15th cen­tu­ry. It is cur­rent­ly in stan­dard use in all vari­eties of speech and writ­ing in both Great Britain and the Unit­ed States.

Oth­er dic­tio­nar­ies also con­tain both def­i­n­i­tions and note the appar­ent con­tra­dic­tion. In fact, Ran­dom House and Mer­ri­am-Web­ster have the lit­tle while/before long/soon def­i­n­i­tion list­ed first, and the now def­i­n­i­tion list­ed second.

Giv­en that the word present­ly can mean “soon” as well as “now”, and giv­en that RCW Chap­ter 42.17 does not define what “present­ly need­ed” means, it seems to us that the RCW per­mits WSDOT to make a deter­mi­na­tion that high­way facil­i­ties or high­way lands will not be soon need­ed, which is the case here.

Soon is com­mon­ly under­stood to mean in the near future. The first two stages of R‑8A are already com­plete, and the third stage is set to be com­plet­ed in Sep­tem­ber 2016. At the time the umbrel­la agree­ment was signed, R‑8A’s com­ple­tion was about five years out in the future. Con­sid­er­ing that many trans­porta­tion projects and plans take decades to go from con­cep­tion to design to con­struc­tion, five years could rea­son­ably con­sid­ered to be “soon­er” rather than “lat­er”.

Espe­cial­ly con­sid­er­ing that the word “present­ly” can also mean soon or before long, we reject the John­sons’ asser­tion that WSDOT vio­lat­ed RCW 47.12.120.

We con­cur with Jus­tice Mad­sen that WSDOT’s umbrel­la agree­ment with Sound Tran­sit gov­ern­ing the improve­ments to I‑90 is legal and con­sti­tu­tion­al, and we con­grat­u­late the Supreme Court on reach­ing a sound and sen­si­ble decision.

Let the con­struc­tion of East Link begin!