The Constitutional Challenge to East Link Light Rail

It’s often said that Rome wasn’t built in a day. Transit advocates in the Puget Sound region probably feel the same about light rail.

Such is the latest round of controversy surrounding the eventual transition of I-90’s center lanes from reversible highway into regional light rail transit. This “East Link” light rail corridor extension was approved by voters last November as a part of Sound Transit’s S-2 expansion plan. But despite election-day approval, it appears the project could violate the 18th Amendment of the Washington State Constitution. So goes the argument of developer Kemper Freeman, the Eastside Transportation Association and a number of other petitioners who filed a lawsuit to challenge the project on July 15.

The lawsuit was filed the same week as the release of an independent study on the center lane transition, a study we reported on last month. The suit itself is a writ of prohibition against Governor Christine Gregoire and Secretary of Transportation Paula Hammond. (For those not familiar with legalese, a writ of prohibition is a legal action to prohibit a government official from taking a specific action. In this case, the action the petitioners wish to stop is the sale or lease of I-90’s center lanes to Sound Transit.) Under the Washington Constitution, the Washington Supreme Court has original jurisdiction over such filings and will decide whether to consider the petition after a Sept. 3 hearing. Wash. Const. art. IV, § 4.

But derailing plans to extend light rail across I-90 will be a difficult battle. The petitioners face a number of challenges in enjoining conversion of the highway.  

Challenge Number One: Getting the case before the Washington Supreme Court

As stated above, the petitioners in this case are able to file their lawsuit directly with the Washington Supreme Court. However, just because the court has original jurisdiction over this kind of suit, doesn’t mean it will agree to hear the case. Like the U.S. Supreme Court, the Washington Supreme Court can choose to hear cases at its own discretion. One of the court’s commissioners will review the petition and decide whether to recommend its acceptance by the court. Only a small number of cases are selected for review, and even fewer are chosen under the court’s original jurisdiction.

All that said, the court has held that when a lawsuit presents issues involving “constitutionality of a statute and matters relating to the expenditure of public funds, it is appropriate for us to exercise our original jurisdiction.” State ex. rel Heavey v. Murphy, 138 Wn. 2d 800, 804 (1999) (quoting Wash. Dept. of Ecology v. State Fin. Comm., 116 Wn. 2d. 246, 251 (1991)). This case does involve the expenditure of public funds and centers on a much-litigated Washington constitutional issue. The petitioners are represented by former State Supreme Court Justice Phil Talmadge in the case, representation that could provide a boost in getting the petition before the full court.

Challenge Number Two: Proving that 18th Amendment funds can’t be used for light rail

If the petitioners succeed in getting their case heard by the court, the justices will have to interpret the state’s constitutional restriction on fuel and vehicle taxes. In 1944, Washingtonians adopted the 18th Amendment to the state constitution, creating a state highway trust fund from vehicle license fees and excise fuel taxes. Resources collected under this amendment can only be used for “highway purposes.” Wash. Const. art. II, § 40.  

Since the amendment’s adoption, the Washington Supreme Court has interpreted the coverage of “highway purposes” many times. In their petition to the court, Kemper Freeman and the Eastside Transportation Association cite a number of these cases, focusing on those that narrowly construe “highway purposes” to prohibit the expenditure of highway dollars on broader transportation-related activities. Automobile Club of Washington v. City of Seattle, 55 Wn. 2d 161 (1959) (prohibiting highway funds from being used to satisfy highway-related tort judgments), Washington State Highway Commission v. Pacific Northwest Bell Co., 59 Wn.2d 216 (1961) (relocating utilities in highway right-of-way is not a “highway purpose”).

Most importantly for the petitioners, the court has previously held that 18th Amendment funds cannot be used “for the planning, constructing, owning or operating of public transportation systems, however beneficial such a use of the funds might be to the state and its citizens.” State ex. rel. O’Connor v. Slavin, 75 Wn. 2d. 554, 560 (1969). The O’Connor court rejected arguments that funding a public transportation system would indirectly benefit highways, ruling that a $250,000 appropriation to plan for better public transit in Seattle violated the letter and intent of the 18th Amendment.  Id.

But despite these narrow interpretations of “highway purposes,” the Washington Supreme Court has also rendered decisions with a broader view of that term, including cases related to public transportation. Only five years after O’Connor, the court widened its reading of the 18th Amendment, allowing highway funds to be used for park-and-ride facilities in metropolitan Seattle. State ex rel. Washington State Highway Commission v. O'Brien, 83 Wash.2d 878 (1974).  In that case, the court reasoned that increased congestion in metropolitan Seattle made the area’s highways “more hazardous and increasingly dangerous.” Id. at 881. The court concluded that making highways less dangerous and more efficient was “implicitly related” to the purposes spelled out in the 18th Amendment, and that park-and-ride transit facilities fit into the amendment’s implicit mandate. Id. at 882.

While O’Connor is probably stronger precedent than O’Brien relative to light rail transit, O’Brien demonstrates that the court could be willing to approve some transit-related activities for 18th Amendment funds. Given the circumstances of the case at bar, including the fact that I-90’s center lanes were originally intended for transit, the court could look to O’Brien for some flexibility in interpretation

Challenge Number Three: Proving that reimbursement is unconstitutional

Given O’Connor’s prohibition on funding for most transit projects, Kemper Freeman and the Eastside Transportation Association can probably demonstrate that light rail is not itself a “highway purpose” under the 18th Amendment. But their most difficult burden may be proving that a transit agency’s reimbursement of 18th Amendment funds is also unconstitutional.

As referenced above, the independent report recently issued by Stoel Rives agreed that a straight transfer of I-90’s center lanes to Sound Transit would likely violate the 18th Amendment. The report concluded that Sound Transit must provide some consideration to acquire the center lanes. But if the Eastside Transportation Association wanted to prevent this paid acquisition, it would have to prove that reimbursement, in addition to a pure transfer of the lanes, would run afoul of the 18th Amendment. Court precedent is murkier on this proposition.

The petitioners have pointed to a state attorney general opinion issued shortly after the O’Brien case as authority on this issue. ALGO 1975 No. 62. The opinion holds that when highway property is transferred to non-highway uses, the new owner or lessee of the property must provide monetary consideration for it, even if the new owner or lessee is a government agency. Id. Again, given the conclusions of the independent report, it appears likely that some sort of payment by Sound Transit will take place in the eventual transfer of I-90’s center lanes. This attorney general opinion does not suggest that such a reimbursement would be unconstitutional. If anything, the opinion appears to support the constitutionality of reimbursement since it recognizes “monetary consideration” as a means of satisfying the 18th Amendment. Id.

Challenge Number Four: Policy considerations

The state legislature, Sound Transit, and countless transportation advocates both for and against the light rail extension continue to discuss the policy implications of converting I-90’s center lanes. Central to this debate has been the notion of taxpayer-funded Sound Transit paying for taxpayer-funded highway. Many have questioned the wisdom of this requirement for what they see as double taxation.

Such policy considerations were raised in an 18th Amendment case in 1999. See Heavey, 138 Wash.2d 800 (1999). The petitioner in Heavey questioned the constitutionality of a state statute channeling vehicle excise taxes into the dedicated highway fund. Id. Interestingly, then-Justice Phil Talmadge opined that “[i]n general, any dedicated funds, particularly constitutionally dedicated funds, are unwise fiscal policy.” Heavey, 138 at 814 (Talmadge concurring). Justice Talmadge criticized the vehicle tax statute in question as an instance where “the Legislature decided to rob Peter to pay Paul.” Id.

Though Heavey involved the diversion of taxpayer dollars from the general fund to the highway-only fund, similar policy principles underlie reimbursement of the I-90 lanes. If the court finds that this case requires “Peter to pay Paul,” Justice Talmadge’s concurrence in Heavey could provide interesting persuasive authority.

Conclusion: It’s an uphill climb

This lawsuit speaks to a critical issue confronting the East Link project, an issue of constitutional importance. But the timing of the lawsuit may be its undoing. No firm agreement has been made on a light rail conversion timeline, and any judicial action before a clearer picture of the bridge’s future can be discerned as premature. And while the court could declare that a payment-free transfer of the center lanes violates the 18th Amendment, such a transfer is unlikely anyway, given the recent independent report and the politics of the project itself. With the precedent against highway funds being paid for non-highway uses, one might argue that prohibiting payment for the independent report may have been a more successful strategy to delay the project.