Maine Turnpike's toll hike options focus on out-of-staters - potential litigation

Maine Turnpike Authority (MTA) is focusing proposed toll increases on out-of-staters, with the possibility of legal troubles from class action suits claiming infringement of the US constitution. This in the context of proposing slightly different ways it can gain a needed 23% increase in revenues or $20m/year extra. In all cases cash tolls and out-of-state transponder tolls will be raised more than locally issued transponder (Maine E-ZPass) tolls.

The Authority will continue the deeply discounted Maine E-ZPass Commuter Program a frequent user scheme under which enrolled motorists traveling the Turnpike get at least 5 days per week get at least 50% off the regular transponder toll.

The effort to grant and expand in-state privileges could produce litigation against the state Turnpike Authority.

The Authority is seeking public comment at two public meetings before a board of directors meeting Dec 12 with increases due to take effect Feb 1 2009. The toll increases have been advanced a year to deal with the revenue shrinkage expected from the economic downturn. In addition the Turnpike is reducing operating costs by $3.2m/year with staff reductions and other efficiencies.

Under all of the scenarios, the cash toll price to enter the Turnpike at ramp toll interchanges will increase from 60c to $1.00 and the cash toll at York mainline plaza near the NH border goes from $1.75 to $2.00, West Gardiner Plaza from $1.00 to $1.25, and Gardiner/I-295 Plaza from 60c to $1.00.

The mainline plaza at New Gloucester will increase from $1.25 to either $1.50 or $1.75 depending on which scenario is adopted.

Under one of the remaining scenarios, the cash toll for the entire 106-mile length of the highway
would be $4.75— 4.5c/mile (2.8c/km). Two other scenarios will charge $5.00 for the full length trip— 4.7c/mile (2.9c/km).

17,000 Maine people are currently enrolled in the Turnpike's Commuter Program paying a flat quarterly fee or pass for unlimited travel between two chosen interchanges. An example cited by the Turnpike is that under one scenario, the quarterly commuter fee for unlimited travel between York (Exit 7) and Wells (Exit 19) is $42.50. A commuter traveling this route five days a week, over a three month period, would pay 33c per trip under the commuter plan, 80c per trip under the regular Maine E-ZPass plan and $2.00 per trip if they were paying cash or interstate E-ZPass.

Under the proposed toll increases the average electronic toll discount - received only by enrollees in Maine E-ZPass - will rise from 12% now to between 29% and 34%. Out-of-state E-ZPass motorists such as those with FAST LANE accounts of the Massachusetts Turnpike, New Hampshire DOT and New York E-ZPass pay full cash toll rates.

Legal advice to most toll authorities has been that enrollment in discount programs passes constitutional muster if it is open to people out of state. A toll authority that reserves a lower toll rate exclusively for residents of the state may be found to be infringing constitutional requirements of "equal protection" (14th Amendment) and the Interstate Commerce Clause (art I, par 8, cl 3), the Privileges and Immunities clause (Art IV, sec 2, par 1) and federal law in 42 USC §1983. These have been held to prohibit differential pricing or discrimination against interstate commerce.

BACKGROUND: Maine Turnpike is 175km (109 miles) of expressway the first segment dating back to 1947, over half of which is now 2x3 lanes. It has 19 interchanges, 19 toll plazas, and 176 bridges. The Turnpike is the state's major gateway to the rest of the US. Toll transactions are an average of 210k/day of an estimated 172k trips/day. Toll revenues are around $85m/yr.

Maine has no open road electronic tolling, just cash and roll-through single lane electronic tolling. The Turnpike is involved in a major controversy over a proposal to avoid all-electronic tolling in a modernization of its main York toll plaza. It's initial proposal was open road tolling through the center and cash collection to either side. However fierce local protests over the extra land required has the Turnpike and consultants involved in a rethink of whether cash collection at the sides is needed.

LEGAL ISSUES:

see 14th Amendment's equal protection clause

http://topics.law.cornell.edu/wex/Equal_protection

see Commerce clause (art 1, sec 8, par 3) and the Privileges and Immunities Clause of Art IV (Art IV, sec 2, par1)

A case filed against the Massachusetts Turnpike Authority which, we think, stretches the notion of the constitution and legal limits but cites pertinent law:

http://www.pawalaw.com/assets/docs/fast-lane-complaint-nj-exhs.pdf

see Maine Turnpike on the proposed toll increases:

http://www.maineturnpike.com/about/press_release.html?recordid=148

http://www.maineturnpike.com/traveler_services/2009_increase.php

TOLLROADSnews 2008-11-30