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Toll payers file class action lawsuit against the Turnpike Authority

by: David

Sun May 10, 2009 at 13:41:35 PM EDT


Storied class-action attorney Jan Schlichtmann has found his latest cause: trying to recover hundreds of millions of dollars worth of tolls paid inside of Route 128 and allegedly unlawfully diverted to pay for the Big Dig.

A group of toll payers has formed the Massachusetts Turnpike Toll Equity Trust, and the Trust (represented by Mr. Schlichtmann) has filed suit against the Turnpike Authority claiming unconstitutional taxation (because the tolls have been used to pay for something other than the tolled roadway, hence they are allegedly "taxes" rather than tolls); separation of powers violation (because only the legislature is empowered to tax); and equal protection violations (I confess I don't entirely understand this claim).  The Trust has helpfully posted all of the litigation documents on its website; you can review them at your leisure.

The Trust has filed a motion seeking to attach all of the Pike's real estate "in an amount no less than $300,000,000.00"  That motion is scheduled to be heard on Thursday, May 14, at 2 pm, in the Middlesex Courthouse, Courtroom 720.  Pass the popcorn.  :-D
David :: Toll payers file class action lawsuit against the Turnpike Authority
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Toll payers file class action lawsuit against the Turnpike Authority | 19 comments
Do we need a bumper sticker? (0.00 / 0)
There's a similar dispute going on in New York -- some Staten Islanders are fed up with paying more than their share of tolls.  They have come up with a bumper sticker that, alas, is tragically lame.

Surely we can do better!

Not to mention... (0.00 / 0)
...the candidate's unfortunate last name:)
[ Parent ]
Good, I'm glad this is going to the courts (0.00 / 0)
The Pike, legislature (and past 16 years of Republican Executives) have made a lot of bad decisions about funding transportation.  Perhaps the courts can provide leadership here and give political cover to the legislature to do the right thing.  

In civil rights the courts have often taken the political heat to make tough decisions legislatures would not decide.  Perhaps the same dynamic can bring improvements and fairness to transportation.

If they win... (0.00 / 0)
Who pays the $300 mil?  Insurance?

~~~~
Believe it or not, I have even more to say...
[ Parent ]
They pay it out in pavement (6.00 / 1)
Everybody gets their 20 square feet worth, in up to 87 pieces.  Think of yellow and white stripes like flowers on a decorated cake.
[ Parent ]
Same (0.00 / 0)
Same entity that pays UBS if the Swaption deal goes sour.  The Authority pays via higher tolls or by selling stuff, or else bankruptcy, or else State steps in to guarantee.
[ Parent ]
Doubt it has much legs... (0.00 / 0)
Because the Central Artery and the Ted Williams Tunnel (collectively, the Big Dig)are part of what is called the Massachusetts Highway System, which also includes the Mass. Turnpike from 128-Logan. All tolls paid within 128 and at the airport tunnels go to pay for that Highway System.

MassTurnpike users DO benefit -- despite their claims -- because their ride into downtown Boston has been made better due to the improvements.

Remember in the pre-Big Dig days when traffic along the Pike approching the Expressway would be backed-up for a mile or so every day?

The one leg they may have to stand on is the argument that everyone whose car touches pavement on the MHS pays or NOONE pays. Meaning that since the MHS is supposed to be a toll-road system, that the state has erred by not placing tolls up at the entrance to the Tip O'Neil tunnel or at the Newton exits.  

Their basic claim (0.00 / 0)
is that the MHS was set up illegally in 1997, because of your last point -- it charged certain users of the MHS, but not others, for the maintenance and operation of the whole MHS.
[ Parent ]
Will John Travolta get to star in the sequel? (0.00 / 0)
 In a 1984 advisory opinion the SJC blessed a proposal to create a public entity with the ability to raise funds by issuing debt where the debt servicing costs would be paid through a "business infrastructure development assessment" that seems to be a corporate tax surcharge. There is no delegation problem as long as the legislature provides clear standards to guide the executive that imposed the surcharge. If a quasi-independent public entity can impose a corporate tax surcharge to pay down transportation debt, then I don't see why another quasi ( the MTA) can't impose tolls to pay down transportation debt. So it seems like today's situation could be legally accomplished, it's just a matter of whether the legislature did it properly.

The complaint seems to assume that since the legislature agreed to reimburse the MTA $25 million each year for paying down the non-turnpike part of the Big Dig debt that the MTA can't use an additional $100 million per year collected from tolls to pay down such debt. That just begs the question though, didn't the legislature know that debt service costs on the non-turnpike debts that were transferred to the MTA would exceed $25 million per year? And if they did but they didn't provide sufficient financing for such non-turnpike costs then can you really presume that the $25 million transfer was intended to cover the entire non-turnpike debt and the toll collections would only be used to pay the turnpike debt? It seems to be a dubious assumption by the plaintiffs.

I don't think this suit has legs. But John Travolta did pull it off before so I guess we'll have to see.        

Your point about... (0.00 / 0)
... 'what they knew' about the adequacy of $25M; does this actually have any impact on the case?  Isn't the case's main point a structural one?  

"It is not because things are difficult that we do not dare, it is because we do not dare that things are difficult." - Seneca (5 BC - 65 AD)
[ Parent ]
It's clear to me (0.00 / 0)
That the legislature could have the MTA collect tolls to pay down the artery tunnel debt if they explicitly delegate that authority to the MTA. I think the plaintiffs are arguing that the legislature did not delegate properly in this case, that because the legislature set aside $25 million to cover that portion of the debt it means they did not intend the tolls to go to that debt. If they knew that the $25 million could not cover the artery debt then I would argue that they did intend for toll collections to help pay down that debt. Where else could the MTA get the money for that debt service?  
[ Parent ]
But isn't it the case... (0.00 / 0)
... that the plaintiff wouldn't have to prove anything regarding intent to make their case?

"It is not because things are difficult that we do not dare, it is because we do not dare that things are difficult." - Seneca (5 BC - 65 AD)
[ Parent ]
The plaintiffs have to prove that (0.00 / 0)
The legislature did not delegate authority to tax with proper guidance and standards. The plaintiff is arguing the fact that the legislature compensates the MTA for the first $25 million of debt costs related to the artery tunnel means that the legislature did not delegate the MTA the authority to pay the artery debt using toll revenue. My point is that if the legislature knew the debt would be $100 million per year and decided to cover only the first $25 million then they did intend that toll revenue would go to paying down that debt. You are correct when you say that the plaintiff does not have to prove the legislature's intent. But I think that as  long as the legislature clearly assigned X amount of debt to the MTA, clearly stated when tolls (or taxes) can be increased to pay the debt, and did not cabin off the non-turnpike debt from the rest if the debt with the $25 million transfer, then the plaintiffs don't have a case here.

But I'm making assumptions here. I'm reaching these conclusions based on a quick reading if the complaint and a quick scan of a 1984 SJC advisory opinion.   Maybe the rules regarding when the MTA can raise the tolls are too sqishy to qualify as proper guidance. I don't know the facts there. Do you think the plaintiffs have a winning argument? If so, on what basis?    

[ Parent ]
I don't know if their... (0.00 / 0)
... argument is a winning one or not.  It just occurred to me that the essence of their case is that the revenue system breaks the rules and that, as such, arguments on the intent of rules are only valid in so far as they might be able to (somehow) speak to the breaking.  My gut check said that  I doubt that the intent had any real bearing on the rules that the claim asserts are being violated.  You seem to indicate that intent might play a role because to show that the proper authority was given would require an argument of implication, which I guess could be true.  I'd guess that 'authority by implication' means that there is an awful lot to 'interpret' here,... so who knows.

"It is not because things are difficult that we do not dare, it is because we do not dare that things are difficult." - Seneca (5 BC - 65 AD)
[ Parent ]
The issue seems to be taxation without representation (0.00 / 0)
I do think collected tolls should on the merits be used for the highways on which they are collect.  As such, I've thought for awhile that if tolls are going to pay for the Big Dig, then they should be collected for the Zakim Bridge and the O'Neill and Williams Tunnels.  I also believe the legislature should be setting the toll rates by law; delegating to an unelected body does not seem right to me.
It's not Tw/oR; it's incorrect assessment of a fee (0.00 / 0)
Maybe a distinction without a difference, but the issue isn't one of taxation, it's one of a user fee not being applied fairly across all users.  A toll on O'Neill would be much more problematic because unlike a bridge (or tunnel under water), it's quite easy to not use the O'Neill and simply use surface roads -- which would have quite a negative impact on the Boston neighborhoods for which the increased motorists at all hours would provide.

I don't know if a toll on the LPZBHMB would result in lots of traffic choosing Boston & Cambridge surface roads to avoid the toll.

[ Parent ]
I still think... (0.00 / 0)
...tolls should be assessed by the legislature.  I'm sure you're correct as to what THIS case is about.

Speaking for myself, I can't imagine using surface roads.  Given the choice of paying a couple bucks and trying to navigate Boston's notorious street layout, I'll pay the money.  If anything I was thinking that through traffic might opt for 128 thus relieving congestion in the city.

[ Parent ]
I wonder... (0.00 / 0)
about taxis and deliveries, particularly for nights and weekends.  When those two groups of drivers start cutting down your local road, quality of life goes way down.
[ Parent ]
Define Ironic (0.00 / 0)
The plaintiffs' attorney is asking for a multimillion dollar attachment against state property.  If you read A Civil Action, you will know that at the end of the Woburn case, he had to file for bankruptcy, not only because he mismanaged his law firm, but because he did not pay income taxes on his legal fees.  Perfect.

Toll payers file class action lawsuit against the Turnpike Authority | 19 comments



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