Mass Pike sued for discrimination against interstate E-ZPass drivers

A class action lawsuit has been filed against the Massachusetts Turnpike Authority over its denial of transponder discounts to E-ZPass drivers that it grants to users of its own transponder branded FAST LANE. The suit filed in US District Court in White Plains NY on behalf of New York motorists visiting Massachusetts charges the state Turnpike with overcharging and discrimination against a class of interstate drivers in violation of the three clauses of the US Constitution and one US law:

- 14th Amendment's equal protection clause

- Interstate Commerce clause (art 1, par 8, cl 3)

- Privileges and Immunities clause Art IV

- plaintiff's civil rights 42USC1983

Pawa's suit also complains that FAST LANE signage says "E-ZPass Accepted" but fails to say  warn that discounts are denied: "There is no warning posted..."  The law suit calls the sign E-ZPass Accepted "fraudulent concealment" and "deception" because there is no warning that E-ZPass customers don't get the same tolls as FAST LANE customers.

Also the suit notes there is nothing on the Mass Pike's website warning that the advertised FAST LANE discounts are not given to E-ZPass users.

The claim is made that the discrimination against E-ZPass users is "wholly arbitrary" and "does not advance any legitimate government purpose."  This is held to violate the Equal Protection Clause in the 14th Amendment.

The suit is filed by Law Offices of Matthew F Pawa of West Newton MA.

It seeks equal discounts for E-ZPass users, and compensation for the class of motorists who have used transponders.

Pawa's suit acknowledges that the Mass Pike solicits New Yorkers to join the FAST LANE program, so he concedes they have the opportunity to get the discounted tolls.

Mass Pike proposed residents-only FAST LANE but...

In June 2002 the Mass Pike board voted to give state residents with FAST LANE  transponders a discount on tolls charged for cash and for non-residents with transponders. Under the initial discount program Massachusetts residents with FAST LANE would get 25c off the $1.00 tolls at Allston-Brighton and MA128, and 50c off the $3.00 tolls at the Williams and Sumnerr tunnels. These tolls went into effect July 1, 2002.

State government lawyers immediately expressed concern that restricting the discount to Massachusetts residents was unconstitutional. Wiithin days the discount was changed from a Residents Discount Program to a FAST LANE Discount Program, and all reference to the program being only for state residents was dropped. Major protest was not coming from far away New Yorkers but from northeastern Connecticut and Rhode Island residents, thousands of whom travel daily to jobs in Boston and who would have been excluded from FAST LANE discounts.

From about July 3, 2002 these motorists in adjacent states were free to get FAST LANE trnasponders and their discounts.

Legal advice has been...

The Interstate Commerce Clause of the Constitution (Art 1, par 8, cl 3)  is held to make it illegal to discriminate against out-of-state customers in pricing.  The Turnpike could not quote one toll for Massachusetts residents and a different one for outsiders.

Legal advice to the toll authorities has been that special deals attached to their transponder however are constitutional so long as residents from other states are allowed to buy their transponders and the privileges that go along with them. I live in Maryland and I have a Pennsylvania Turnpike Commission E-ZPass so I can get Pennsylvania benefits. I have neighbors here in Maryland who have Virginia E-ZPass transponders because they do most of their toll driving in Northern Virginia and want to get their special deals. New Yorkers doing regular business in Boston get FAST LANE transponders, and so on.

Mass Pike's lawyers will argue in the Pawa case that they aren't denying discount deals to Pawa's clients in New York, since if those deals are important enough to them, those New Yorkers are fully entitled to establish a FAST LANE account and buy a FAST LANE transponder to attach to their windshield. They will probably cite the numbers of New Yorkers are already enrolled in FAST LANE.

Many states have special discount deals associated with their own E-ZPass or E-ZPass compatible transponder:

-  New York State Thruway has a special deals for residents of frequent users of the New England Thruway, the Tappan Zee Bridge, the Grand Island Bridges and sever of their barrier plazas (see extract at the bottom)

see http://www.nysthruway.gov/ezpass/discount.html

- E-ZPass accounts with the MTA Bridges and Tunnels in New York City give a special Staten Island resident discount for tolls on the Verrazano Narrows Bridge

- Dulles Greenway Virginia customers only get high mileage discounts

- Delaware River Port Authority and several others offer rebates or unlimited use tolls for use beyond a threshold number of trips per month or per quarter but only to holders of their E-ZPass transponder

A major rationale for the various toll authorities issuing their own versions of E-ZPass is precisely to allow them to cater to local constituencies with special discount programs. That is the main reason why there is no single E-ZPass, but separate E-ZPasses for most of the different states (E-ZPass New Jersey, E-ZPass DRJTBC, E-ZPass Virginia etc), as well as I-Pass (Illinois), i-Zoom and FAST LANE, all operating within the E-ZPass Inter Agency Group.

Different treatments are often a source of internal discord within the IAG and sometimes open and noisy political warfare - the case of Illinois' launch of i-Zoom in mid-2007.

The Indiana legislature intended i-Zoom to provide a discount to Indianans commuting into Chicago and the Toll Road Concession Company launched i-Zoom without a plan to offer the commuter discount rates to Illinois I-PASS holders and other E-ZPass IAG group members.

The US Constitution be damned said Illinois Tollway and got away with it

Indiana was apparently constitutionally within its rights to establish i-Zoom as the technical bearer of politically contrived privileges for northwest Indiana commuters since citizens of Illinois, Ohio and other states were free to establish an i-Zoom account and put an i-Zoom transponder on their windshield.

But all hell broke loose in Illinois when i-Zoom was rolled out with this as the announced deal. John Mitola the Illinois Tollway's chairman and Bruce McPartlin the CEO excoriated the Indiana plan and threatened to deny Indianans the discounts they presently get on Illinois tollways. This was like Panama confronting the US, Tibet China, or Georgia Russia. Forget the rights and the wrongs, and the legalities, the military superpower crushes the little guy.

Illinois in the summer of 2007 was the Transponder Superpower in the clash with Transponder Disarmed Indiana. Illinois has had transponders for over a decade and deploys over 3.3 million I-Passes, including some tens of thousands on the windshields of Indiana vehicles. The threat of making those Indianan owned I-PASSes ineligible for normal I-PASS discounts - though flagrantly unconstitutional - was enough to get Indiana to capitulate. Hauling up the white flag the Helpless Hoosiers climbed down and agreed to extend their i-Zoom discounts to I-PASSes.

The threat to deny Indianans I-PASS benefits was transponder power politics prevailing over the letter of the US Constitution, but it happened. Indiana might have eventually prevailed in the courts, but meanwhile they would have tens of thousands of their citizens charged nearly doubled tolls, and many of them buying a second transponder.

But differential treatment remains widespread.

If the Pawa lawsuit wins and the courts ban different treatment then the whole basis for E-ZPass IAG would have to be rethought.

COMMENT: The different terms for different versions of E-ZPass reflect local politics and accommodation of special interests state by state. It would be neat if this were all swept away. But it is difficult to see that happening since toll rates are set by a bunch of distinct state and bi-state authorities and concessionaires working under state and municipal contracts.

The Inter Agency Group (IAG) is a heroic attempt to make transponders usable across a dozen or more sovereign jurisdictions each of which retains substantial autonomy to set their terms for doing business. In its nature E-ZPass has to be a collection of compromises. Messy, but what's the alternative. Each agency can't give all the others the same terms because the terms differ, and some contradict one another. Whose terms would prevail where terms differ?

We can't see merit in this law suit.

TOLLROADSnews 2008-10-12