The lawsuit challenging the Turnpike’s tolls as unconstitutional taxes has been rejected by a trial court judge. [Clarification: The judge denied a request for a preliminary injunction; he has not yet dismissed the suit, though I’d wager that he will soon.]
This, you may recall, is the lawsuit in which storied class action attorney Jan Schlichtmann (assisted by other high-powered legal talent such as former A.G. Scott Harshbarger and former Governor’s Legal Counsel Daniel Winslow) argued that using toll revenues to support Big Dig expenses transformed the tolls into unconstitutional taxes.
Trial court judge Herman Smith rejected the argument. You can read the entire decision here (PDF). Basically, Smith concluded that the plaintiffs had little chance of succeeding on the merits of their case, and that even if they did, the extraordinary disruption that a ruling in their favor would create at this stage of the case counseled against granting the desired injunction. Schlichtmann says he will appeal.
could the injunction still be denied because of the “extraordinary disruption” it would cause?
…since when can a judge dismiss a suit because HE thinks there isn’t a good chance of WINNING? Isn’t he suppossed to make a decision based on legal theory and standing?
He denied the request for an injunction. The standard inquiry on whether to issue an injunction includes an assessment of “likelihood of success on the merits.” There is a hearing scheduled for whether to dismiss the suit.
The second half of the opinion says, essentially, “even if they had a good chance of winning, I still deny the injunction for the following reasons.” It’s all in the opinion.
David, thanks for the post. [Full disclosure aside: I am working with the Trust on media relations].
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p>If you care to get a bit deeper into the issues, check out http://www.tollequity.com – all the legal documents are on the website for public review and comment. See the strong legal arguments and the growing movement of tollpayers who are fed up.
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p>The Turnpike admits it diverts 58 cents of every dollar to pay for The Big Dig. That means that every time anyone from MetroWest or the North Shore drives in to Boston, they are paying for themselves and at least one driver who gets to ride for free. We have more then 2,500 people signed on now who say that isn’t fair.
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p>Below is a statement released from Jan Schlichtmann in response to the judge’s ruling but, yes, the case goes on and the appeal will be filed shortly.
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p>Statement from Jan Schlichtmann, lead attorney, Massachusetts Turnpike Toll Equity Trust:
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p>”We are of course disappointed with the ruling today but our cause endures and the 2,500-strong Toll Equity Trust will immediately appeal this ruling. We believe there is a fundamental constitutional principal involved that must be vindicated: The government cannot constitutionally charge some drivers to use a road system in order for most of the drivers to use it for free. We will immediately petition the Appeals Court to right this wrong and uphold the basic constitutional principal that governmental fees must be fair and equitable.”
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I assume that Attny Schlictman has proof that tolls are being used to pay for the I-93N/S bonds right?
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p>Because the original bonds issued from 1998-2000 said that tolls were going to be used to pay for the I-90 extension and that the O’Neill Tunnel portion was being paid through state and federal tax dollars.
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p>I assume this has changed, right?
Our figures come from the Turnpike’s own figures that they divert 58 cents of every dollar to cover the costs of the non-tolled roads.
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p>See the the Turnpike’s own Toll Equity Working Group report and analysis in this affidavit from Mark Potter, an economist at Babson College.
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p>http://www.tollequity.com/pdf/…