A year ago, a group of private citizens filed a class action lawsuit against Sound Transit, arguing that its motor vehicle excise tax (MVET) approved by voters as part of ST3 violates the state Constitution. Later that year a Pierce County judge ruled against the plaintiffs, who are appealing the decision. Now, the Commissioner for the Supreme Court will soon decide whether to grant a request by the regional transit agency to have the high court directly review the case.
Sound Transit argues that it needs a verdict by the end of the year or risks greater costs for its Federal Way link project. However, legal counsel for the plaintiffs as well as some transportation analysts say those fears are unfounded.
Sound Transit is currently applying for a $790 million capital grant from the Federal Transportation Administration (FTA), along with a $629 million loan from US Department of Transportation (USDOT). Altogether, they provide $1.42 billion of the $3.16 billion total cost for the Federal Way link project. However, Sound Transit Chief Financial Officer Tracey Butler wrote in a May 10 motion for transfer that to lock in the interest rate for the loan, the agreement must be signed by Dec. 22. If not, it could result in a higher interest rate and add at least $429 million to project costs.
“Sound Transit will be in a significantly better position to complete its application…without delay if this litigation is finally resolved this fall,” Butler writes.
Joel Ard is one of the attorneys representing the plaintiffs. He told Lens that the request “doesn’t make sense to me.” He added that these motions are usually for cases that have statewide consequences and require timely clarification from the court.
In their opposition to the motion, Ard and co-attorney Matthew C. Albrecht wrote that Sound Transit fails to “present a record to justify the extraordinary relief it seeks. Instead, it offers only contestable claims that the appellate process might impose some financial disadvantage.”
Washington Policy Center Transportation Director Mariya Frost is also skeptical of the agency’s claim, since it started the grant process in 2016 and did not raise the issue until now. She added that “if you look at past history, Sound Transit has received the money they asked for, despite pending litigation pertaining to car tab tax collection.”
In 2003, the agency received a $500 million FTA grant for its Central Link Light Rail Transit project while litigation was still ongoing regarding Initiative 776, which set car tab fees at $30. In the meantime, the Sound Transit Board of Directors provided the FTA information from its 2003 financial plan.
“I don’t think they’re even really saying they will lose a grant, or lose a loan or have a higher interest if the case is still pending,” Ard said. “In the past, you (Sound Transit) gave them a financial plan that was adequate to get a half a billion grant when someone was trying to blow up the whole MVET. What gives?”
The plaintiffs May 24 response also argued that to grant Sound Transit’s request would “harm other litigants before this Court and the Court of Appeals, and be detrimental to this Court’s review of the legal issues in this case.”
Frost agrees. “If the Supreme Court accepts this case, they’re sending the message that if you are rich and powerful you can cut in line, and that’s not the kind of Supreme court that anybody wants.”
While Sound Transit argues the motion is intended to reduce project costs or delays, the plaintiffs’ May 24 response noted that “the motion to transfer assumes that the Court will rule in favor of CPSRTA (Sound Transit). Otherwise, the transfer would do nothing to advance the purpose for which CPSRTA brings the motion.”
The lawsuit concerns whether the law authorizing Sound Transit to collect the MVET violates Article 2 Section 37 of the State Constitution’s “forth and full” requirement when amending or revising state law. In 1979, the Supreme Court overturned a state law amending the Shoreline Management Act because it “did not set out those provisions of the SMA which were affected. The result was to substantially alter the scope and effect of the SMA without changing the language of the statute to reflect that alteration.”
The 2015 law approved by state lawmakers pertaining to the ST3 MVET references the chapter amended, but doesn’t include the actual provision. However, there was mixed testimony on the matter during a 2017 Senate committee work session investigating ST3.
The Commissioner for the Supreme Court is scheduled to hear the motion on June 6.