Cohen v. Rhode Island Turnpike and Bridge Authority

Filing 40

OPINION AND ORDER granting Defendant's 28 Motion for Summary Judgment; denying Plaintiffs' 30 Motion for Summary Judgment. So Ordered by Judge William E. Smith on 4/7/11. (Jackson, Ryan)

UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND ___________________________________ ) ) ) ) ) Plaintiff, ) ) v. ) ) RHODE ISLAND TURNPIKE AND ) BRIDGE AUTHORITY, ) ) Defendant. ) ___________________________________) ISABEL S. COHEN, on Behalf of Herself and All Others Similarly Situated, OPINION AND ORDER WILLIAM E. SMITH, United States District Judge. This is a of class the toll action schedule challenging for crossing the the

C.A. 09-153 S

constitutionality

Newport/Claiborne Pell Bridge ("Newport Bridge"). is before the Court on For is the the parties' reasons and

The case for

cross-motions set forth

summary

judgment. motion

below, is

Defendant's denied. I.

granted

Plaintiff's

motion

BACKGROUND1 Newport, located on Aquidneck Island, is one of Rhode

Island's
1

most

attractive

tourist

destinations.

It

is

The facts recited in this section are taken from the parties' Joint Statement of Undisputed Facts, which is appended to this opinion.

visited

by

thousands

of

Rhode

Island

residents

and

nonresidents alike for both work and play.

The Newport

Bridge is one of three bridges that drivers may use to access Aquidneck Island. The other two are the Mount Hope Only the Newport

Bridge and the Sakonnet River Bridge.

Bridge takes drivers directly into the City of Newport; the other bridges bring drivers to the other end of the island, which must be traversed before reaching Newport. Defendant Rhode Island Turnpike and Bridge Authority ("RITBA") is a state entity charged with maintaining and operating the Newport and Mount Hope Bridges. Drivers

cross the Mount Hope Bridge for free but must pay a toll to cross the Newport Bridge. All of RITBA's funds come from RITBA uses

the tolls it collects at the Newport Bridge.

all these funds to operate and maintain the Newport and Mount Hope Bridges, and to satisfy debt service. Formerly,

those crossing the Newport Bridge could pay the toll by cash or token. Bridge was the In either event, the cost for crossing the same for Rhode Island residents and

nonresidents.

This situation changed in January 2009, when

RITBA scrapped the use of tokens and promulgated a toll schedule reflecting a discount for Rhode Island residents that is not available to nonresidents. The discount

applies to users of E-ZPass, an electronic toll system that 2

automatically charges drivers who attach a small electronic device known as a transponder to their car. The new

schedule is as follows:2 RI transponder $0.83 $4.00 $0.91 Non-RI transponder $4.00 $4.00 $4.00

RI resident RI nonresident RI nonresident making 6+ trips per 30-day period Cash Unlimited Crossing

$4.00 $40.00 every 30 days

$4.00 Unavailable

Plaintiff Isabel S. Cohen is a Connecticut resident who has crossed the Newport Bridge "for many reasons,

including to purchase items while in Newport," and has paid tolls at the nonresident rate. (Joint Statement of

Undisputed Facts ¶ 2, ECF No. 29.)

She has now brought

suit--as the representative of the certified class of "all non-Rhode Island residents who paid tolls to cross the

Newport/Claiborne Pell Bridge using an E-ZPass, FastLane or other comparable system, and who did not receive the

discount given to Rhode Island residents pursuant to the RI

Since January 2009, three different toll schedules have been in place, all of them preserving the residentonly discount. Because the parties do not attach any importance (except for the purpose of calculating damages) to the differences among these toll schedules, this opinion will set forth only the most recent schedule. All three schedules can be viewed in the Appendix. 3

2

E-ZPass

Discount

Plan"

(id.

¶

23)--challenging

the

constitutionality of the toll schedule. As the chart makes apparent, the current toll schedule reflects at least four forms of differentiation--between: (1) Rhode Island residents and nonresidents; (2) users of Rhode Island and non-Rhode Island transponders; (3) cash payers and E-ZPass users; and (4) frequent and infrequent users. This class action challenges only the first

disparity, claiming that the favorable treatment afforded to Rhode Island residents violates the Commerce Clause, the Privileges and Immunities Clause, and the Equal Protection Clause of the United States Constitution.3 II. DISCUSSION A. The Commerce Clause Commerce Clause provides, in pertinent part,

"Congress shall have Power . . . [t]o regulate Commerce . . . among the several States . . . ." I, § 8, cl. 3. U.S. Const. art.

"Though phrased as a grant of regulatory

power to Congress, the Clause has long been understood to have a `negative' aspect that denies the States the power unjustifiably to discriminate against or burden the

The difference between Rhode Island and non-Rhode Island transponders is not challenged because Rhode Island transponders are available to everyone, including nonresidents. 4

3

interstate flow of articles of commerce."

Oregon Waste

Sys., Inc. v. Dep't of Envt'l Quality, 511 U.S. 93, 98 (1994). economic designed burdening "This `dormant' Commerce is, Clause `prohibits measures by

protectionism--that to benefit

regulatory

in-state

economic

interests v.

out-of-state

competitors.'"

Doran

Mass.

Turnpike Auth., 348 F.3d 315, 318 (1st Cir. 2003) (quoting New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 273

(1988)).

Plaintiff's first claim for relief is that the

resident-only discount violates the dormant Commerce Clause by discriminating against nonresidents of Rhode Island. 1. The Market Participant Doctrine

RITBA argues that the resident-only discount is immune from Commerce Clause scrutiny because, in implementing it, RITBA acts as a "market The participant" market and not in a

governmental

capacity.

participant

doctrine

"differentiates between a State's acting in its distinctive governmental capacity, and a State's acting in the more general capacity of a market participant; only the former is subject to the limitations of the negative Commerce

Clause."

New Energy, 486 U.S. at 277.

For example, the

Supreme Court has held that a state's decision to sell the cement produced at a state-operated cement plant only to state residents did not violate 5 the Commerce Clause,

because the state was acting as a market participant in the private business of producing and selling cement, and had the right to choose with whom it would deal. v. Stake, 447 U.S. 429, 438-40 (1980). As Reeves, Inc. the Second

Circuit has observed, there is no bright line separating actions taken in a "governmental capacity" from those taken as a "market participant," and a court faced with a market participant defense "must make fact-specific inquiries on a case-by-case basis" to determine on which side of the line the state action falls. Selevan v. N.Y. Thruway Auth., 584

F.3d 82, 93 (2d Cir. 2009). RITBA's market participant argument relies on Endsley v. Chicago, 230 F.3d 276, 284-86 (7th Cir. 2000), which held that the actions of the City of Chicago in collecting tolls for crossing the Chicago Skyway were shielded from Commerce doctrine. analogy Seventh to Clause scrutiny by the market participant

This Court is not persuaded by the attempted Endsley. noted To begin that with, in that case, the

Circuit

the

plaintiffs

"plead[ed]

themselves out of court" by alleging in their complaint that "[s]ince as a its inception, the City has and operated not in the its

Skyway

proprietary

enterprise,

governmental capacity."

Id. at 284.

Here, by contrast,

Cohen has not shot her own Commerce Clause claim in the 6

heart by including such a self-defeating allegation in the complaint. But the analysis does not stop there, because the

Seventh Circuit went on in Endsley to conclude that the market operation "[e]ven court." if Id. participant of the doctrine from not would Commerce plead shield Clause Chicago's scrutiny out of

Skyway had

plaintiffs

themselves

The court reasoned that in raising funds for

the upkeep and operation of the Skyway by selling revenue bonds and charging drivers a toll, "the City was acting as a property owner, using its property to raise money, not as a regulator." Id. at 285. RITBA relies on the same logic,

arguing that in charging tolls for crossing the Newport Bridge, which it owns and operates, it is acting like a private property owner. The market participant doctrine is not as open-ended as RITBA would have the Court believe. State to influence `a discrete, It only "permits a class of

identifiable

economic activity in which [it] is a major participant.'" South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 97 (1984) (brackets in original) (quoting White v. Mass. Council of Constr. Emp'rs, Inc., 460 U.S. 204, 211 n.7 (1983)). And the "market" must be "relatively narrowly

defined," lest the market participant doctrine "swallow[] 7

up the rule that States may not impose substantial burdens on interstate commerce . . . ." U.S. at 97-98. Here, RITBA South-Central Timber, 467 has not identified such a

market, and has not pointed out how it participates in it and with whom it competes. Nor recognized is the the bare assertion of that "[c]ourts toll roads have as

operation

private

legitimate economic activity," Endsley, 230 F.3d at 284, sufficient to meet the Supreme Court's requirement of

identifying a narrowly-defined market.

That requirement

mandates the identification of an economic market in which the state actually participates in conducting the

challenged activity, South-Central Timber, 467 U.S. at 9798, not the mere assertion that the state's conduct could be conceived of in the abstract as "legitimate economic activity," hypothetical participant Endsley, 230 F.3d were at 284. If the such a

exercise doctrine

sufficient, endlessly,

market

would

sweep

encompassing

every conceivable state function and "swallowing up" the negative command of the dormant Commerce Clause. For

example, no one could seriously suggest that just because providing security services can constitute "legitimate

economic activity," a state acts as a market participant when it provides for the security of its citizens; quite 8

the

contrary, as a

maintaining core

public

security function.

has

long See,

been e.g.,

regarded

governmental

Illinois v. Gates, 462 U.S. 213, 237 (1983) (referring to the duty "to provide for the security of the individual and of his property" as "the most basic and U.S. function quotation 665, 690 of any

government")

(internal v.

citations Hayes, 408

marks (1972)

omitted); Branzburg

("providing security for the person and property of the individual is a fundamental function of government").

Similarly, the mere fact that private property owners may charge fees for the use of their property does not

transform RITBA's operation of Rhode Island State bridges and tollways into private market activity.4 In view of these considerations, it is not surprising that other courts confronted with the issue in a similar context have declined to follow the Endsley court's

sweeping interpretation of the market participant doctrine. See Selevan, 584 F.3d at 93-94 (refusing to follow Endsley and holding instead that the market participant doctrine Indeed, the decisions cited in Endsley for the proposition that "[c]ourts have recognized the operation of private toll roads as legitimate economic activity," 230 F.3d at 284, have nothing to do with the market participant doctrine. See Overstreet v. North Shore Corp., 318 U.S. 125 (1943); Moore Bros. Co. v. Brown & Root, Inc., 207 F.3d 717 (4th Cir. 2000) (cited by the Endsley court as Lane Constr. Corp. v. Highlands Ins. Co.). 9
4

did

not

immunize

the

New

York

Thruway

Authority

from

Commerce Clause scrutiny when it implemented a bridge toll discount available exclusively to residents of Grand

Island, New York); Surprenant v. Mass. Turnpike Auth., No. 09-10428, 2010 WL 785306, at *6 n.9 (D. Mass. Mar. 4, 2010) (holding that the market participant doctrine did not apply to the Massachusetts Turnpike Authority's implementation of a toll discount program).5 Like the statutes at work in

Selevan and Surprenant, RITBA's enabling act makes clear that "the acquisition, construction, operation, and

maintenance by the authority of the projects as defined in this chapter as [sic] will constitute the performance of essential governmental functions . . . ." 12-31. Given the clear language of RITBA's enabling act, the general rule that "building and maintaining roads is a core governmental function," Selevan, 584 F.3d at 93, and R.I.G.L. § 24-

RITBA's failure to identify a narrowly-defined market in which it is a "major participant," South-Central Timber, 467 U.S. at 97-98, the Court concludes that the market

The First Circuit has not ruled on the issue. See Doran v. Mass. Turnpike Auth., 348 F.3d 315, 318 n.2 (1st Cir. 2003) (declining to reach the issue whether the Massachusetts Turnpike Authority's implementation of a toll discount program was protected by the market participant doctrine). 10

5

participant doctrine does not shield RITBA's implementation of the toll schedule from Commerce Clause Clause must scrutiny. thus be

Plaintiff's

dormant

Commerce

claim

assessed on the merits. 2. The Merits

The application of the dormant Commerce Clause to this class action must follow the framework erected by the

Supreme Court in Evansville-Vanderburgh Airport Auth. Dist. v. Delta Airlines, Inc., 405 U.S. 707 (1972), and Northwest Airlines, (1994). Inc. v. County of Kent, Mich., 510 U.S. 355

In Evansville the Court held that a charge levied

by state entities on commercial airliners to help defray the costs of airport construction and maintenance is

constitutional "so long as the toll is based on some fair approximation of use or privilege for use . . . and is neither excessive conferred, reflect discriminatory in . comparison . . even against with though the interstate the some commerce nor

governmental other use

benefit might state In

formula of the

more

exactly

relative

facilities by individual users."

405 U.S. at 716-17.

Northwest Airlines the Court reformulated the Evansville rule as a three-pronged test: "a levy is reasonable under

Evansville if it (1) is based on some fair approximation of use of the facilities, (2) is not excessive in relation to 11

the

benefits

conferred,

and

(3)

does

not

discriminate

against interstate commerce."

Northwest Airlines, 510 U.S.

at 369 (citing Evansville, 405 U.S. at 716-17). Though the Northwest Airlines test was first announced in connection with the "reasonableness" requirement of the Anti-Head Tax Act, the Supreme Court affirmed that it is "taken directly from our dormant Commerce Clause

jurisprudence" and applied it to a dormant Commerce Clause challenge. Northwest Airlines, 510 U.S. at 373-74.

Accordingly, the First Circuit has applied the same test in adjudicating a dormant Commerce Clause challenge to bridge and highway tolls. Doran, 348 F.3d at 320 (citing

Evansville); see also Selevan, 584 F.3d at 97-98 (citing with approval the First Circuit's application of "the

Evansville / Northwest Airlines test" and holding that the same test applies to a dormant Commerce Clause challenge to a bridge toll).6

In view of the First Circuit's application of the Evansville / Northwest Airlines test to a Commerce Clause challenge to a toll discount in Doran, this Court is not free to apply any other test to this case. However, it must be noted that state and federal courts in Massachusetts have applied alternative tests in assessing similar challenges to the constitutionality of highway tolls. See Kelen v. Mass. Turnpike Auth., No. 060839BLS1, 2007 WL 1418510, at *6 (Mass. Super. Ct. May 3, 2007) (invoking various decisions and apparently applying the test of Pike v. Bruce Church, Inc., 397 U.S. 137 (1970)); Surprenant v. Mass. Turnpike Auth., No. 09-10428, 2010 WL 12

6

Because the presence of discrimination would swiftly dispose of the case, the Court addresses the third prong of

785306, at *6 (D. Mass. Mar. 4, 2010) ("I believe that the Second Circuit was wrong in mandating the application of the Northwest Airlines test, and that the Pike test applied [in Kelen] is the correct one."). The refusal to apply Northwest Airlines in Kelen and Surprenant appears to have been based on the argument that the tolls at issue did not have a sufficient impact on interstate commerce to even invoke Commerce Clause scrutiny, an argument repeated by RITBA in this case. See Kelen, 2007 WL 1418510, at *7 (concluding that because the toll gates were situated within the state, not close to the borders, and the toll program did not show economic protectionism, "the tolls do not have sufficient facial effect on interstate commerce to evoke commerce clause scrutiny"); Surprenant, 2010 WL 785306, at *4-6 (quoting the Kelen analysis with approval). This line of reasoning seems mistaken, because Supreme Court precedent clearly establishes that the degree of an alleged violation, no matter how minimal, does not preclude scrutiny under the Commerce Clause. Oregon Waste Sys., Inc. v. Dep't of Envtl. Quality, 511 U.S. 93, 100 n.4 (1994) ("our precedents . . . clearly establish that the degree of a differential burden or charge on interstate commerce measures only the extent of the discrimination and is of no relevance to the determination whether a State has discriminated against interstate commerce") (internal citations and quotation marks omitted) (emphasis in original); see also Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 92 (2d Cir. 2009) (relying on Oregon Waste to reject the argument that a 75-cent toll for crossing an intrastate bridge in New York "did not impose any cognizable burden on interstate commerce," and holding that the "toll differential [between residents and nonresidents] speaks to the extent of the alleged discrimination, rather than to the presence of a violation"). Indeed, the tollways at issue in Doran were located intrastate (around Boston) and not near state borders, but that did not prevent the First Circuit from undertaking a Commerce Clause analysis and applying Evansville / Northwest Airlines. In any event, in light of this Court's application of Northwest Airlines (infra at 13-23), the different approaches taken by this Court and the courts in Kelen and Surprenant may amount to different paths to the same conclusion. 13

Northwest Airlines first.

See Selevan, 584 F.3d at 94

(characterizing the discrimination prong as a "threshold inquiry" and addressing it first). because RITBA treats Rhode by Plaintiff contends that Island its residents toll and

nonresidents available

differently to

making it

discount against

only

residents,

discriminates

interstate commerce. differentiation

In other words, according to RITBA, discrimination. Superficially, See

equals

there appears to be some support for this position. Oregon Waste, 511 U.S. at 99 ("`discrimination'

simply

means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter"). On closer inspection, however, the analogy to Oregon Waste falls apart. That decision spoke to "differential

treatment of in-state and out-of-state economic interests" --that is, transporters of in-state and out-of-state waste --not differential treatment of residents and nonresidents. See id. (emphasis added) (deeming it "obvious" that a

surcharge imposed by Oregon on disposal of waste generated out of state was facially discriminatory because it did not apply to in-state waste). Indeed, although there is no

dearth of jurisprudence on Commerce Clause challenges to bridge and highway tolls, not a single one of the decisions 14

cited by the parties has held that such tolls discriminate against interstate between the commerce residents of solely and because they This equals

differentiate shows that

nonresidents.

logic

"differentiation

discrimination" does not apply to different tolls charged to resident and nonresident motorists.7 There is good reason for this forbearance: "The

central rationale for the rule against discrimination is to prohibit economic state or municipal laws laws whose object is local those

protectionism,

that

would

excite

jealousies and retaliatory measures the Constitution was designed to prevent." C & A Carbone, Inc. v. Town of Accordingly, when a of "local economic

Clarkstown, 511 U.S. 383, 390 (1994). law does not implicate the kind

protectionism" that the Commerce Clause aims to eradicate, The fact that other state programs favoring residents over nonresidents have been upheld as constitutional lends additional support to the conclusion that the "differentiation equals discrimination" logic does not always apply in a non-economic context. See, e.g., Baldwin v. Fish & Game Comm'n of Mont., 436 U.S. 371 (1978) (upholding a Montana statute that made it more difficult and expensive for nonresidents to obtain hunting licenses); Martinez v. Bynum, 461 U.S. 321, 333 (1983) ("The Constitution permits a State to restrict eligibility for tuition-free education to its bona fide residents."); Vlandis v. Kline, 412 U.S. 441, 452-53 (1973) ("We fully recognize that a State has a legitimate interest in protecting and preserving the quality of its colleges and universities and the right of its own bona fide residents to attend such institutions on a preferential tuition basis."). 15
7

the

rationale

for

equating

differentiation

and

discrimination disappears. Commerce Circuit Clause has challenges "in

In applying C & A Carbone to to bridge to the tolls, a the Second for a

held, in

order of

state

claim Clause,

discrimination plaintiff must

violation an

Commerce

identify

in-state

commercial

interest

that is favored, directly or indirectly, by the challenged statutes Selevan, at 584 the F.3d expense at 95 of out-of-state competitors." quotation

(internal

citations,

marks, and brackets omitted).8 Selevan involved a constitutional challenge to a

bridge toll discount available only to residents of Grand Island, New York. The Second Circuit held that the

plaintiffs could not demonstrate discrimination within the meaning of Northwest Airlines because they "failed to

identify an in-state commercial interest that is favored, and they do not point to a particular out-of-state Id.

competitor that is harmed by NYTA's toll policy." (internal omitted). citations, quotation marks, and

brackets

In Doran, the First Circuit had no occasion to decide whether differentiation equals discrimination in the context of tolls, because the toll discount challenged there did not differentiate between residents and nonresidents of Massachusetts, and was available to both. 348 F.3d at 319. 16

8

As in Selevan, in this case Plaintiff has failed to identify a specific in-state commercial interest that is favored by the Newport Bridge toll discount at the expense of particular out-of-state the competitors, so it cannot against

demonstrate

that

discount

discriminates

interstate commerce.

Therefore, the discount satisfies the

third prong of Northwest Airlines. Turning now to the first two prongs, the Court must decide whether the Newport Bridge toll "(1) is based on some fair approximation of use of the facilities" and "(2) is not excessive in relation to the benefits conferred." Northwest Airlines, 510 U.S. at 369. Because these two

prongs are related, the Court will address them together (as the parties have done). See Bridgeport & Port

Jefferson Steamboat Co. v. Bridgeport Port Auth., 567 F.3d 79, 86 (2d Cir. and 2009) the (noting that "the `fair

approximation'

`excessiveness'

criteria

substantially overlap" and addressing them together). Cohen argues that because RITBA uses some of the toll moneys collected at the Newport Bridge to maintain the nontolled Mount Hope Bridge, the toll is not based on a fair approximation of the use of the Newport Bridge and is In

excessive in relation to the benefits conferred by it.

other words, according to Cohen, the fact that the tolls 17

collected at the Newport Bridge are used to maintain and operate another facility shows that the toll amount exceeds the costs and benefits associated with the Newport Bridge itself. This argument relies on Bridgeport, which held

that a fee imposed by a quasi-public authority of the State of Connecticut on the passengers from ports of in a ferry company to New

transporting

travelers

Connecticut

York violated the dormant Commerce Clause, because the fees were used to fund many activities that were not available to and did not benefit the ferry passengers. Id. at 87-88.

RITBA counters that the Mount Hope Bridge does benefit the users of the Newport Bridge, so the fact that part of the Newport Bridge toll moneys go towards maintaining the Mount Hope Bridge does not mean that the tolls are

excessive.

Specifically, RITBA relies on Auto. Club of

N.Y., Inc. v. Port Auth. of N.Y. & N.J., 887 F.2d 417 (2d Cir. 1989), to argue that there is a "functional

relationship" between the Newport and Mount Hope Bridges. In that case, plaintiffs challenged the Port Authority of New York and New Jersey's subsidization of the Port

Authority Trans-Hudson Railroad ("PATH") by including PATH in the rate base for the tolls charged to cars crossing various bridges and tunnels in the area. Id. at 417. The

Second Circuit held that including PATH in the rate base 18

was appropriate because there was a functional relationship between PATH and the bridges and tunnels. Specifically,

PATH prevented a "spillover effect" by diverting some of the traffic that would jam the bridges and tunnels in the absence of PATH. Id. at 422-23.9 She argues

Cohen disputes the analogy to Auto. Club.

that there can be no functional relationship between the two bridges, for if there were, "then everyone would take the free crossing and no one would pay the $4.00 Newport Pell Bridge toll." confuses the (Pl.'s Rep. Mem. at 5.) of exact This argument with

concept

interchangeability

functional relationship.

As previously mentioned (supra at

2), the Newport Bridge and the Mount Hope Bridge do not take drivers to exactly the same place, which explains why some drivers might prefer to take the former over the

latter despite its cost.

However, it is possible for the

two bridges to be functionally related without operating as exact substitutes. This was indeed the case in Auto. Club,

Auto. Club involved a challenge under the Federal-Aid Highway Act of 1987, and the plaintiffs had abandoned their Commerce Clause claim by the time the case reached the Second Circuit. Auto. Club of N.Y., Inc. v. Port Auth. of N.Y. & N.J., 887 F.2d 417, 417, 420 n.2 (2d Cir. 1989). However, the parties in this case do not dispute the applicability of the "functional relationship" analysis to the dormant Commerce Clause claim, and the Second Circuit has elsewhere indicated that the test is relevant in this context. See Bridgeport, 567 F.3d at 87. 19

9

where although some of the bridges and tunnels did not have the identical origin and destination as the PATH railway, the Second Circuit held that the routes were functionally related because the bridges and tunnels would become

overcrowded in the absence of PATH. The Second Circuit held that in

887 F.2d at 422-23. assessing a purported

functional relationship, a court should not focus narrowly on an "origin and destination" analysis and must also pay attention to a possible "spillover effect." Id. at 422.

Applying the spillover effect analysis to this case, the question is whether the presence of the Mount Hope Bridge helps alleviate the traffic that would exist on the Newport Bridge in its absence. In other words, would

"closing [the Mount Hope Bridge] increase[] congestion" on the Newport Bridge? See id. at 423. Given that the

Newport and Mount Hope Bridges comprise two of only three routes of driver access to Aquidneck Island, this question must be answered in the affirmative. Bridge were closed, drivers who now If the Mount Hope use it to get to

Aquidneck Island would have to choose either the Newport Bridge or the Sakonnet River Bridge instead. event, increased congestion on the Newport In either Bridge is

unavoidable:

If they take the Newport Bridge, congestion If they take the

on the Newport Bridge would increase. 20

Sakonnet

River

Bridge,

congestion

on

that

bridge

would

increase, prompting some of its previous users to take the Newport Bridge instead, which would again increase

congestion on the Newport Bridge. Aquidneck Island is in fact an

In short, given that island with only three

avenues of access for drivers, the conclusion that two of these three avenues are functionally related follows almost by definition. This Court is not required to measure the strength of this functional relationship or the precise extent of added congestion produce. that closing the Mount Hope Bridge would

Plaintiff's argument, relying on Bridgeport, is

that because the Mount Hope Bridge does not benefit users of the Newport Bridge at all, the fact that the Newport Bridge tolls subsidize the Mount Hope Bridge is, by itself, sufficient to show that the toll schedule flunks the first two prongs of Northwest Airlines. all that must be shown is some To defeat this argument, functional relationship

between the two bridges. Nor has Plaintiff adduced any other evidence to show that the Newport Bridge tolls are not "based on some fair approximation of use of the facilities" or are "excessive in relation to the benefits conferred." See Northwest

Airlines, 510 U.S. at 369.

All that Plaintiff offers on 21

this score is that the tolls must be excessive because they are different for nonresidents. "Obviously," says

Plaintiff, "the actual cost of a passenger car to cross the Newport Pell Bridge would not fluctuate from 83 cents to $4.00 simply because the driver's residency changed from Rhode Island to another state." 13.) Once again, a point decried as "obvious" is a weak link. To begin with, the $0.83 versus $4.00 differential (Pl.'s Amended Mem. at

applies only to infrequent crossers; if a nonresident makes more than six trips a month, his E-ZPass toll is only eight cents higher than a resident's, and the E-ZPass tolls for unlimited crossings, as well as the cash tolls, are the same for residents this is and not nonresidents. a case where a See supra at 3.

Therefore,

state

generally

charges its residents $0.83 and its nonresidents $4.00 for a bridge toll. factors besides The toll schedule incorporates multiple residency--including the type of

transponder used, whether payment is by cash or by E-ZPass, and the frequency of use. Depending on all these factors,

the toll difference between similarly situated residents and nonresidents can range from zero to $3.17. Moreover, RITBA need not demonstrate that the toll fee exactly equals the costs of maintenance or the benefits 22

conferred; all that is required is that the tolls "reflect a fair, if imperfect, for 405 whose U.S. at approximation benefit 717. they The of the use of

facilities Evansville,

are

imposed." Court has

Supreme

rejected a requirement of "complete fairness," noting that the factors to be considered in applying such a

perfectionist standard "are so countless that we must be content with rough approximation rather than precision." Id. at 716 (internal quotation marks and citations

omitted). Because this Court has held that the toll discount does supra not at discriminate 15, the against interstate between commerce, residents see and

differentiation

nonresidents is subject to deferential review.

See Oregon

Waste, 511 U.S. at 99 ("nondiscriminatory regulations . . . are valid unless `the burden imposed on [interstate]

commerce is clearly excessive in relation to the putative local benefits'") (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)).10 Here, Plaintiff has proffered no

It would be a different matter if Plaintiff had shown that the differentiation between residents and nonresidents amounts to discrimination against interstate commerce. If that were the case (which it is not), the discount would be subjected to strict scrutiny, which it might not survive. See Oregon Waste, 511 U.S. at 101 (holding that a discriminatory measure is subject to "the strictest scrutiny," a burden "so heavy that facial discrimination by 23

10

evidence of a "clearly excessive" burden, claiming instead that the toll discount must "obviously" be excessive by mere dint of the fact that it is higher for nonresidents. RITBA's purported justification for this differentiation-namely, that imposing a higher toll on nonresident users is justified because it would be more expensive to apprehend them and make them pay if they shirk from paying the toll or damage the toll structure--is sufficient to rebut

Plaintiff's conclusory assertion.

Like the charges upheld

in Evansville, the toll discounts in this case "reflect rational distinctions among different classes of"

motorists, and are not "wholly unreasonable" nor "wholly irrational." See 405 U.S. at 718-19.

In sum, the Newport Bridge toll schedule passes muster under Northwest Airlines because (1) it is based on a fair approximation of use of the facilities operated by RITBA; (2) it is not and excessive (3) it in does relation not to the benefits against

conferred;

discriminate

interstate commerce.

Therefore, the toll discount does not

run afoul of the Commerce Clause.11 itself may be a fatal defect") (internal quotation marks and citations omitted). Two other courts assessing a similar challenge also concluded, albeit after applying a different test than Northwest Airlines, that a toll discount available only to residents of East Boston, South Boston, and the North End 24
11

B. The

Privileges and Immunities Clause Privileges and Immunities Clause provides that

"[t]he Citizens of each State shall be entitled to all Privileges States." and U.S. Immunities Const. art. of Citizens § 2, in cl. the 1. several It "was

IV,

designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy." The for Toomer v. Witsell, has 334 U.S. a 385, 395

(1948). inquiry

Supreme assessing

Court claims

established the

two-step and

under

Privileges

Immunities Clause: the alleged

First, the court must determine whether bears upon a "fundamental"

discrimination

right--that is, one of "those `privileges' and `immunities' bearing entity." upon the vitality of the Nation as a single

United Bldg. & Constr. Trades Council v. Mayor of

Camden, 465 U.S. 208, 218 (1984) (internal quotation marks omitted) (quoting Baldwin v. Fish & Game Comm'n of Mont., 436 U.S. 371, 383 (1978)). If no fundamental right is

implicated, the Privileges and Immunities Clause does not require equal treatment of residents and nonresidents, and the challenged of the state action does not "fall within the Id.

purview

Privileges

and

Immunities

Clause."

in Boston did not discriminate against interstate commerce. See Kelen, 2007 WL 1418510, at *7; Surprenant, 2010 WL 785306, at *4; see also supra note 6. 25

(quoting

Baldwin, goes

436 to

U.S. a

at

388).

But right, can

if it

the is that

discrimination unconstitutional

fundamental state

unless

the

show

"substantial reason[s]" exist for the discrimination and that "the degree of discrimination bears a close relation to them." offered for Id. at 222. the "As part of any justification law, nonresidents must

discriminatory

somehow be shown to `constitute a peculiar source of the evil at which the statute is aimed.'" 334 U.S. at 398). Cohen's Privileges and Immunities claim is based on a purported violation of her right to travel. It is Id. (quoting Toomer,

undisputed that the right to travel is a fundamental right protected by the Privileges and Immunities Clause. e.g., Saenz v. Roe, 526 U.S. 489, 501 (1999). See,

"A state law

implicates the right to travel when it actually deters such travel, . . . when impeding travel is its primary

objective, . . . or when it uses any classification which serves to penalize the exercise of that right." Attorney

General of N.Y. v. Soto-Lopez, 476 U.S. 898, 903 (1986) (internal citations and quotation marks omitted).12 Cohen

In Soto-Lopez the Supreme Court considered the "right to travel" in general, having "not felt impelled to locate this right definitively in any particular 26

12

claims

that

the

resident-only

discount

flunks

the

third

part of this test. However, distinguished which seek the Supreme bona Court fide has "always carefully

between to and fixed

residence between

requirements, residents such and as

differentiate residence date, and

nonresidents, durational,

requirements, fixed point

residence

requirements, which treat established residents differently based on the time they migrated into the State." 903 n.3. has held, A bona fide residence requirement, appropriately defined and uniformly applied, furthers the substantial state interest in assuring that services provided for its residents are enjoyed only by residents. . . . It does not burden or penalize the constitutional right of interstate travel, for any person is free to move to a State and to establish residence there. A bona fide residence requirement simply requires that the person does establish residence before demanding the services that are restricted to residents. Martinez v. Bynum, 461 U.S. 321, 328-29 (1983) (emphasis in original); accord Soto-Lopez, 476 U.S. at 903 n.3. The resident-only discount in this case plainly Id. at

Clarifying this distinction, the Supreme Court

qualifies as a "bona fide residence requirement" under the Supreme Court's definition. As such, because all members

constitutional provision." Attorney Soto-Lopez, 476 U.S. 898, 902 (1986). 27

General

of

N.Y.

v.

of the Plaintiff class are "free to move to [Rhode Island] and to establish residence there" and take advantage of the resident discount, Plaintiff's right to travel claim under the Privileges and Immunities Clause is foreclosed by SotoLopez and Martinez. *3, *5 (dismissing available See also Kelen, 2007 WL 1418510, at right only to travel to challenge to toll of

discounts

certain

residents

Massachusetts); accord Surprenant, 2010 WL 785306, at *7. Perhaps the analysis would be different if Plaintiff had premised the Privileges and Immunities claim on the right to work and earn a living in Newport. established that a "nonresident's right It is firmly to pursue a

livelihood in a State other than his own" is "a right that is protected by the Privileges and Immunities Clause."

Baldwin, 436 U.S. at 386; see also United Bldg., 465 U.S. at 219 ("[T]he pursuit of a common calling is one of the most fundamental of those privileges protected by the

Clause. . . . Many, if not most, of our cases expounding the Privileges and Immunities Clause have dealt with this basic and essential However, activity.") Plaintiff has (citing not numerous the

decisions).

premised

Privileges and Immunities claim on the right to earn a

28

living, and does not challenge a denial of that right.13 The only Privileges and Immunities claim before the Court is premised on the right to travel, and it must be rejected for the reasons stated. C. Equal Protection

The Equal Protection claim stands on the same "right to travel" footing as the Privileges and Immunities claim and fails for the same reasons. III. CONCLUSION For summary the foregoing is reasons, and Plaintiff's Defendant's motion motion for for

judgment

DENIED

summary judgment is GRANTED.

IT IS SO ORDERED.

/s/ William E. Smith
William E. Smith United States District Judge Date: April 7, 2011

Indeed, per Plaintiff's request, the certified class is not the class of nonresidents working in Newport but "all non-Rhode Island residents who paid tolls to cross the Newport/Claiborne Pell Bridge using an E-ZPass, FastLane or other comparable system, and who did not receive the discount given to Rhode Island residents pursuant to the RI E-ZPass Discount Plan." (Order Granting Mot. for Class Certification) (emphasis added). There is no telling how many, if any, of the class members actually work in Newport. 29

13

UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
ISABEL S. COHEN. on Behalf of Herself and All Others Similarly Situated. John Doe 1 John Doe 2, Jane Doe 1 and Jane Doe 3

v.
RHODE ISLAND TURNPIKE AND BRIDGE AUTHORITY

C.A. No. 09-153S

JOINT STATEMENT OF UNDISPUTED FACTS
The Parties hereby stipulate to the following facts for the purpose of their cross-motions for summary judgment: 1. Defendant. the Rhode Island Turnpike and Bridge Authority C'RITBA"), is a body corporate and politic governed by R.t Gen. Laws 1956 § 24-12-1 et seq. 2. Plaintiff is a resident of the State of Connecticut who utilized the Newport/Claiborne Pell Bridge ("Newport Pell Bridge") and paid tolls at the non-resident rate for doing so. She crossed the Newport Pell Bridge for many reasons, including to purchase items while in Newport. 3. RITBA presently owns, and is responsible for the maintenance and operation of, among other things. the Newport Pell Bridge and the Mount Hope Bridge and their associated buildings and grounds (the "Bridges"). All of RmTA's funding comes from tolls

charged for crossing the Newport Pell Bridge. The tolls from the Newport Pell Bridge are used to fund the operation and maintenance of the Bridges as well as to satisfy debt service. 4. The Newport Pell Bridge is a four (4) lane structure linking Newport, R.I. and Jamestown, R.L

5. The Mount Hope Bridge is a two (2) lane suspension bridge built over the Mount Hope Bay that connects Bristol, R.I. and Portsmouth, R.I. Portsmouth and Newport are both located on Aquidneck Island. The Mount Hope Bridge is located approximately ten (10) miles from the Newport Pell Bridge. 6. According to RITBA's Ten Year Renewal and Replacement Plan, approved by its Board on September 23, 2009, RIDTA will spend over $47 million on the Mount Hope Bridge. 7. The $47 million will be paid from tolls collected for crossing the Newport Bridge. 8. In addition, a portion of the Newport Pell Bridge tolls are used to fund upkeep, insurance, utilities, and maintenance cost for the Mount Hope Bridge. 9. The Newport Pell Bridge is one of three (3) bridges that drivers may use to access Aquidneck Island where Newport is located. 10. Newport is one Rhode Island's tourist destinations. 11. Out-of-State residents utilize the Newport Pell Bridge in connection with tourism. 12. Out-of-State residents also utilize the Newport Pell Bridge to reach their places of employment in Newport. 13. Travelers crossing the Newport Pell Bridge must pay a toll. 14. Pursuant to statute, the RITBA is empowered to set the amount of the tolls for crossing the Newport Pell Bridge. 15. Prior to January, 2009, travelers had the option of paying the toll on the Newport Pell Bridge either by cash, or by token. Cash payments could be made at the toll gate in the amount of $2.00. Tokens could be purchased at the toll gate at the rate of eleven (11) tokens for $10.00. In addition, tokens could be purchased at certain designated locations at the rate of sixty (60) tokens for $50.00. Rhode Island residents and nonresidents could

purchase tokens at the same price at these locations. 16. RITBA uses all toll revenue for debt service or expenses incurred in the operation and maintenance of the Bridges. 17. In January, 2009, RITBA installed and instituted E-ZPass. 18. E-ZPass is an electronic toll system. Under this system, a driver attaches a small

electronic device known as a transponder to his or her car. The transponder is linked to an account in the name of the holder of the transponder. When the driver passes through the toll gates, the transponder is read by a corresponding device connected to the gates. Tolls are automatically charged to the account linked to the transponder. 19. By instituting E-ZPass, RITBA eliminated the use of tokens and developed a pricing structure for use with E-ZPass. 20. RITBA developed the following pricing schedule for single crossings over the Newport Pen Bridge: Newport Pell Bridge Toll Schedule RI Resident Non-RI Resident Non-RI Resident making 30+ trips per 30 day period Cash RI transponder $0.83 $1.75 $0.91 $2.00 Non-Rhode Island transponder $1.75 $1.75 $1.75 $2.00

21. On September 8, 2009, RITBA altered the pricing schedule for single crossings as follows: Newport Pell Bridge Toll Schedule RIResident Non-RI Resident Non-RI Resident making 26+ trips per 30 day period Cash RI transponder $0.83 $4.00 $0.91 $4.00 Non-Rhode Island transponder

Bt°O

$4.00

.00

$4.00

22. On February 15, 2010, RITBA altered the pricing schedule for single crossings as follows: Newport Pell Bridge Toll Schedule RlResident Non-RI Re:>ident Non-RI Resident making 6+ trips per 30 day period Cash Unlimited Crossing RI transponder $0.83 $4.00 $0.91 $4.00 $40.00 every thirty (30) days Non-Rhode Island transponder $4.00 $4.00 $4.00 $4.00 Unavailable

23. On April 28, 2010, this Court entered an Order certifying the class as consisting of "all non-Rhode Island residents who paid tolls to cross the Newport/Claiborne Pell Bridge using an E-ZPass, FastLane or other comparable system, and who did not receive the discount given to Rhode Island residents pursuant to the RI E-ZPass Discount Plan." PLAINTIFF DEFENDANT

lsi Stephen R. White
Stephen R. White, Esq. Law Offices of Stephen R. White 200 Centerville Road, Suite One Warwick. RI 02886 [e-mail] Timothy J. Burke, Esq. Stull, Stull & Brody 10940 Wilshire Boulevard, Suite 2300 Los Angeles, CA 90024 [e-mail] Jules Brody, Esq. Mark Levine, Esq. Aaron L. Brody, Esq. Stull, Stull & Brody 6 East 45 th Street New York, NY 10017 [e-mail] [e-mail] [e-mail]

lsi William E. O'Gara
William E. O'Gara (#4257) Bernard A. Jackvony (#2302) Thomas R. Gonnella (#7605) PANNONE LOPES DEVEREAUX & WEST LLC 317 Iron Horse Way, Suite 301 Providence, RI 02908 [e-mail] [phone] [phone] (fax)