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:
- The necessary operating, engineering and legal expenses connected with the administration of public highways, county roads and city streets;
- 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;
- 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;
- Refunds authorized by law for taxes paid on motor vehicle fuels;
- 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:
- in a little while; soon: They will be here presently.
- 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!