Download Toll Discounts for In-State Residents Draw Constitutional Challenge

Toll Discounts for In-State Residents Draw Constitutional Challenge
By JOHN SCHWARTZ
New York Times
Published: April 1, 2009
Is E-ZPass helping states violate the Constitution?
The East Boston entrance to the Ted Williams Tunnel,
one of the crossings at issue in Massachusetts and Rhode
Island. - David L. Ryan/Boston Globe
Massachusetts and Rhode Island use electronic toll
systems to charge their residents less than out-of-staters at
some bridges and tunnels. Now two new lawsuits filed in
federal courts say the practice is unconstitutional.
An out-of-state driver crossing Narragansett Bay on the Claiborne Pell Newport Bridge
must pay $1.75 with an E-ZPass transponder in the car, but Rhode Islanders, under a
resident discount program introduced in January, pay just 83 cents with a transponder.
(No break for anyone who pays cash.) Massachusetts has a similar program that reduces
the cost of some bridge and tunnel tolls in Boston for those who live nearby.
The lawsuits claim that this differential pricing violates the constitutional provisions that
prohibit burdens on interstate commerce and promise equal treatment under the law.
“This type of economic protectionism,” the lawsuit in the Rhode Island case states, “is
exactly the type of discrimination the commerce clause was designed to prevent.”
The clause was written into the Constitution to promote a common market among states,
and to correct “cycles of discrimination and retaliation” that had occurred in the 1780s,
explained Brannon P. Denning, a professor at the Cumberland School of Law at Samford
University in Birmingham, Ala. “They were afraid this interstate friction would harm
political union,” Professor Denning said.
Since then, courts have required states to meet tough tests if they are to favor their
residents. They must, for instance, justify the favoritism by showing a valid local purpose
unrelated to economic protectionism, and demonstrate that there are no alternatives less
discriminatory.
Many states have given discounts to residents living near tolls — even in the days before
electronic transponders — to ease the financial burden of crossings that may be necessary
daily, said James A. Crawford, executive director of the E-ZPass Interagency Group, an
organization of agencies around the country that offer electronic tolling.
“Toll operators have recognized their presence in a community and their need to
economically support that community,” Mr. Crawford said. He has seen no similar suits
in which discounts were challenged on state discrimination grounds, he said, aside from a
2007 case in Massachusetts that was dismissed.
New York drivers could be affected by the lawsuits, because the state has a large number
of resident discount programs. Most drivers with an E-ZPass pay $8.30 to cross the
Verrazano-Narrows Bridge, but Staten Islanders pay just $4.98. Residents of the
Rockaway section of Queens get a similar break on the Marine Parkway Gil Hodges
Memorial Bridge and the Cross Bay Veterans Memorial Bridge, and people living on
Grand Island north of Buffalo pay less than a dime to cross their local bridge.
New Jersey also provides various turnpike and parkway discounts that are available to
people with E-ZPasses registered in the state, although drivers do not have to be
residents.
In Massachusetts, people who live near the Tobin Memorial Bridge in Boston and who
use the transponder — Massachusetts calls its system Fast Lane — pay 30 cents to cross,
while others have to pay as much as $3. In February, the Massachusetts Turnpike
Authority raised tolls at the Ted Williams Tunnel and the Sumner Tunnel, charging
nearby residents 40 cents and nonresidents $7.
Representatives of the Massachusetts Turnpike Authority, the Massachusetts Port
Authority and the Rhode Island Turnpike and Bridge Authority, the defendants in the two
new lawsuits, declined to comment in detail about the cases. David A. Darlington,
chairman of the Rhode Island authority, said in a statement, “We strongly believe in the
merits of our position, and we believe that Rhode Island residents are entitled to a
discounted rate, and we intend to defend that position.”
The suits were filed by a handful of law firms that specialize in class-action litigation.
They seek refunds for drivers charged more than the in-state or local rate, as well as a
declaration that the discount programs violate the constitutional rights of drivers.
In the 2007 Massachusetts case, a state judge, Allan van Gestel, upheld the discounted
toll program for residents near the bridges and tunnels, saying it imposed a “minimal”
burden on the right to interstate travel guaranteed by equal protection. Rhode Island
officials have said they looked closely at that case in determining the legality of their
current policy.
In an interview, Judge van Gestel, who is now retired, expressed surprise that his
reasoning had had such influence on Rhode Island. He noted that his had been a statelevel case, while the new lawsuits were filed in federal court, and that it had not turned on
the issue of the commerce clause.
The plaintiff in the Massachusetts case, Carol F. Surprenant, an emeritus professor of
marketing at the University of Rhode Island, seemed nonplussed when reached by
telephone on Tuesday. Before giving the name of her lawyer and ending the call, Ms.
Surprenant, who has received several press inquiries about the case, said, “I cannot
believe that this many people are interested in restraint of trade.”