NPI's Cascadia Advocate

Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate provides the Northwest Progressive Institute's uplifting perspective on world, national, and local politics.

Friday, September 13th, 2013

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]

  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!

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One Comment

  1. Thanks for a com­pre­hen­sive analy­sis of what will no doubt prove to be a piv­otal WA State Supreme Court deci­sion. The urgent need for rail tran­sit solu­tions is under­scored in The Seat­tle Times today, Sep. 15. First, take a look at the cur­rent series on ocean acid­i­fi­ca­tion. Then read Jon Tal­ton’s col­umn. He explores the past, present, and future role of rail net­works to keep our mul­ti-modal econ­o­my work­ing while reduc­ing car­bon emis­sions. Gael Tarleton

    # by Gael Tarleton :: September 15th, 2013 at 12:10 PM

One Ping

  1. […] 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 […]

    Ping from Rebutting Justice Johnson’s Dissent :: September 19th, 2013 at 7:24 AM
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