Not surprisingly, the Washington State Supreme Court ruled against Kemper Freeman Jr.'s long and futile legal struggle to block the construction of light rail across the I-90 floating bridge. In a 7-2 opinion (pdf), with the Johnson brothers dissenting, the court ruled that Sound Transit's fair market lease of the bridge's center lanes, and its reimbursement of WSDOT's contribution to their construction, means that no state gas tax dollars are being spent in violation of the state's 18th Amendment.
Article II, Section 40 says that all vehicle fees and gas tax revenue must be "placed in a special fund to be used exclusively for highway purposes." The purposes of this Motor Vehicle Fund (MVF) do not include building light rail. But, the court ruled, because "any money that was previously expended from the MVF will be reimbursed, the language of article II, section 40 is not violated."
But perhaps unnoticed by most observers is that this Supreme Court ruling could also serve to further narrow the 18th Amendment's restrictions:
More importantly, article II, section 40 by its language does not protect highways. Rather, it protects certain taxes and revenues from uses other than highway purposes. Specifically, the amendment creates a fund and then limits the uses to which the fund may be put. Nothing in the language suggests the intent of the amendment was to protect highways themselves.
The appellants rely on a 1944 voters pamphlet for their claim that the people intended highways in use to remain in use. ... [But] rather than supporting the appellants' attempt to constitutionalize highways, the pamphlet only reflects the people's desire to protect certain money for highway purposes by creating a dedicated fund; it does not address whether highway facilities must continue to be used for highway purposes.
In his strongly worded dissent, one of the Johnson's complains that "this court once again erodes the guaranties of the Washington State Constitution's 18th Amendment, which prevents the diversion of gas tax, vehicle registration, and related funds for nonhighway purposes." And you know what? He may actually be right!
Nice shootin', Kemper. No doubt pro-transit attorneys will be citing Freeman v. State for years to come.