Freeman v. Gregoire

• Decision Date: 21 April 2011
• Docket Number: No. 83349–4.,83349–4.
• Citation: 256 P.3d 264,171 Wash.2d 316
• Parties: Kemper FREEMAN, Jim Horn, Steve Stivala, Ken Collins, Michael Dunmire, Sarah Rinlaub, Al DeAtley, Jim Coles, Brian Boehm, and Eastside Transportation Association, a Washington nonprofit corporation, Petitioners,v.Christine O. GREGOIRE, a state officer in her capacity as Governor of the State of Washington, and Paula J. Hammond, a state officer in her capacity as Secretary of the Washington State Department of Transportation, Respondents,andCentral Puget Sound Regional Transit Authority, Intervenor.
• Court: Washington Supreme Court

171 Wash.2d 316

256 P.3d 264

Kemper FREEMAN, Jim Horn, Steve Stivala, Ken Collins, Michael Dunmire, Sarah Rinlaub, Al DeAtley, Jim Coles, Brian Boehm, and Eastside Transportation Association, a Washington nonprofit corporation, Petitioners,

v.Christine O. GREGOIRE, a state officer in her capacity as Governor of the State of Washington, and Paula J. Hammond, a state officer in her capacity as Secretary of the Washington State Department of Transportation, Respondents,andCentral Puget Sound Regional Transit Authority, Intervenor.

No. 83349–4.

Supreme Court of Washington, En Banc.

Argued Sept. 16, 2010.Decided April 21, 2011.

Philip Albert Talmadge, Thomas M. Fitzpatrick, Talmadge/Fitzpatrick, Tukwila, WA, George E. Kargianis, Law Offices of George Kargianis, Kristen Leigh Fisher, Attorney at Law, Seattle, WA, for Petitioners.Robert M. McKenna, Maureen A. Hart, Bryce E. Brown Jr., Office of the Attorney General, Olympia, WA, for Respondents.Desmond Leoron Brown, Sound Transit Union Station, Paul J. Lawrence, Matthew J. Segal, Jessica Anne Skelton, Pacifica Law Group, LLP, Seattle, WA, amicus counsel for Respondent Intervenor–Sound Transit.Catherine C. Clark, Melody Staubitz, Law Office of Catherine C. Clark, Seattle, WA, amicus counsel for Nelson Trucking Company.Lisabeth R. Belden, Law Office of Lisabeth R. Belden, Seattle, WA, amicus counsel for Save Mi Sov.C. JOHNSON, J.

[171 Wash.2d 319] ¶ 1 This is an original action brought by individual taxpayers Kemper Freeman, Jim Horn, Steve Stivala, Ken Collins, Michael Dunmire, Sarah Rinlaub, Al DeAtley, Jim Coles, Brian Boehm, and Eastside Transportation Association against Governor Christine Gregoire and Secretary Paula Hammond of the Washington State Department of Transportation (DOT). ¹ PETITIONERS SEEK To invoke the original jurisdiction of this court under article IV, section 4 of the state constitution and RAP 16.2 for issuance of a writ of mandamus barring the governor or secretary from “taking any action” pertaining to the conversion of lanes of Interstate 90 (I–90) for purposes of light rail. We deny the petition.

FACTS

¶ 2 I–90 is a state highway route that, in the vicinity of Lake Washington, extends from the city of Bellevue across Mercer Island towards Interstate 5(I–5) while traversing two bridges. The portion of I–90 in dispute in this case consists of eight total lanes: three general purpose lanes in each direction and a two-lane reversible center roadway. The center roadway is currently restricted to high occupancy vehicles (HOV). I–90 was built, in part, with motor vehicle fund expenditures.² The motor vehicle fund is also used to maintain I–90.

¶ 3 The initial proposal to build the section of I–90 between Bellevue and I–5 was besieged by design and configuration conflicts between state and local jurisdictions. On December 21, 1976, following public hearings, King County, the cities of Seattle, Mercer Island, and Bellevue, the municipality of Metropolitan Seattle, and the Washington State Highway Commission executed a memorandum of agreement (MOA) regarding I–90. The MOA established that two of I–90's lanes be “designed for and permanently committed to transit use.” Agreed Statement of Facts (ASF) (Feb. 8, 2010), Ex. A at 4.

¶ 4 On September 20, 1978, the United States Secretary of Transportation issued a “Decision Document” approving federal funding for the proposed I–90 roadway. This decision contained an express condition that “public transportation shall permanently have first priority in the use of the center lanes.” ASF, Ex. B at 6.

¶ 5 From 1998 to 2004, Central Puget Sound Regional Transit Authority (Sound Transit) and the DOT conducted a planning and environmental review process regarding transit and HOV operation on I–90 between Seattle and Bellevue. Sound Transit and DOT identified plan “R8A” as the preferred alternative. One design feature of R8A was the reconfiguration and addition of HOV lanes to the I–90 outer lanes. In August 2004, the signatories to the 1976 MOA amended their original agreement. The amended 2004 MOA states:

[T]he ultimate configuration for I–90 ... should be defined as High Capacity Transit in the center roadway and HOV lanes in the outer roadways.... High Capacity Transit for this purpose is defined as a transit system operating in dedicated right-of-way such as light rail, monorail, or a substantially equivalent system.

ASF, Ex. C at 2. Shortly thereafter, the Federal Highway Administration (FHA) selected R8A as the preferred alternative.³

¶ 6 On November 4, 2008, Sound Transit submitted the Sound Transit 2 Regional Transit System Plan (ST2) for voter approval. Included in the ST2 plan was a proposal for light rail operations beginning in Seattle, traveling over Mercer Island, and proceeding into Bellevue (the East Link). The East Link portion of ST2 provides funding for placing new HOV lanes on the outer roadway of I–90. Unlike the existing, reversible HOV lanes located in the center of I–90, the new HOV lanes would be dedicated to one direction of travel, one eastbound and one westbound, at all times. The East Link also provides that the two center lanes of I90 be used by Sound Transit for light rail. The ST2 plan was approved by voters. ASF, Ex. E.

¶ 7 Washington State's 2009–2011 biennial transportation budget provides two funding instructions specific to I–90. Engrossed Substitute S.B. 5352, 61st Leg., Reg. Sess. (Wash.2009) (ESSB 5352), at section 204(3), provides for $300,000 to be appropriated from the motor vehicle account “for an independent analysis of methodologies to value the reversible lanes on Interstate 90 to be used for high capacity transit.” ESSB 5352, section 306(17) (codified at Laws of 2009, ch. 470, § 306(17)) states:

The legislature is committed to the timely completion of R8A which supports the construction of sound transit's east link. Following the completion of the independent analysis of the methodologies to value the reversible lanes on Interstate 90 which may be used for high capacity transit as directed in section 204 of this act, the department shall complete the process of negotiations with sound transit.

Pursuant to section 204(3), independent appraisals of the I–90 center lanes were delivered to Sound Transit and DOT. In November 2009, $250,000 was paid for the work performed on the valuations. Following agreement on the valuation, Sound Transit and DOT engaged in negotiations that produced a Term Sheet. The Term Sheet is subject to the delivery of a number of future agreements, but essentially outlines that Sound Transit, in exchange for a 40–year air space lease of the center lanes of I–90, will pay DOT an amount equal to the current cost to construct the center lanes and the fair market rental value for the lanes as determined by the independent valuation funded by section 204(3). The funds DOT receives from Sound Transit, for both construction reimbursement and the value of the lease, will be placed back into the motor vehicle fund.

[171 Wash.2d 323] ¶ 8 On December 1, 2009, the FHA confirmed that reimbursement of federal-aid highway funds expended in the construction of the center lanes of I–90 would not be required “should [the center lanes] be used for light rail transit.” ASF, Ex. J.

ANALYSIS

¶ 9 This court has original jurisdiction over writs of quo warranto or mandamus, but only appellate and revisory jurisdiction over writs of prohibition. Wash. Const. art. IV, § 4. Nonetheless, we can issue a writ to prohibit a state officer from exercising a mandatory duty. Wash. State Labor Council v. Reed, 149 Wash.2d 48, 55–56, 65 P.3d 1203 (2003). The only relief requested by petitioners in their petition against state officer was a writ of prohibition. Pet. Against State Officer at 1–2. In later briefings, petitioners expanded this remedy to include a writ of mandamus. Accordingly, we treat petitioners' action as one for mandamus.

¶ 10 Mandamus is an extraordinary remedy appropriate only where a state official is under a mandatory ministerial duty to perform an act required by law as part of that official's duties. Cmty. Care Coal. v. Reed, 165 Wash.2d 606, 614, 200 P.3d 701 (2009). The mandate must specify the precise thing to be done or prohibited. Walker v. Munro, 124 Wash.2d 402, 407, 879 P.2d 920 (1994) (citing Clark County Sheriff v. Dep't of Soc. & Health Servs., 95 Wash.2d 445, 450, 626 P.2d 6 (1981)). And the mandate must define the duty with such particularity “ ‘as to leave nothing to the exercise of discretion or judgment.’ ” SEIU Healthcare 775NW. v. Gregoire, 168 Wash.2d 593, 599, 229 P.3d 774 (2010) (emphasis omitted) (internal quotation marks omitted) (quoting State ex rel. Clark v. City of Seattle, 137 Wash. 455, 461, 242 P. 966 (1926)).

¶ 11 Petitioners present two related arguments. First, petitioners argue that sections 204(3) and 306(17) of the 2009–2011 transportation budget violate Washington Constitution article II, section 40 restrictions on the expenditure of motor vehicle fund moneys. Petitioners assert that these two transportation provisos impose a duty to value and transfer the two center lanes. Since the center lanes were constructed, in part, using motor vehicle fund moneys, petitioners' reason that any transfer of the lanes would essentially be an unlawful diversion of motor vehicle fund moneys. Second, petitioners broadly argue that article II, section 40 prohibits the State from entering into “any agreement” with Sound Transit for use of the two center lanes of I–90 for high capacity light rail.

ISSUES

(1) Whether sections 204(3) and 306(17) of the 2009–2011 transportation budget create mandatory duties compelling the issuance of a writ.

¶ 12 Article II, section 40 restricts the expenditure of motor vehicle fund moneys. Article II, section 40, in pertinent part, states:

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...