Citizens' group loses 'first round' in battle over bridge
June 12, 2008 · Updated 9:59 AM
"Thurston County Superior Court Judge Daniel Berschauer plunged a dagger into the heart of the citizens' group seeking to derail construction of a second Narrows Bridge when he agreed Jan. 28 to dismiss a lawsuit filed by the Peninsula Neighborhood Association against the state Department of Transportation.In addition to throwing out the association's suit, Berschauer also affirmed the constitutionality of the controversial Public-Private Initiatives Act, by which the state proposes to build the toll bridge.The Gig Harbor-based association filed its lawsuit last July, charging DOT with constitutional and procedural violations in its efforts to build the bridge--which an estimated 80 percent of residents in the communities closest to the Narrows opposed in an advisory election last year.The association's principal argument was that for the state to allow a private company (United Infrastructure Washington) to build and maintain the bridge amounts to a state-sanctioned monopoly, because peninsula residents realistically have no other way to reach Tacoma other than by crossing the Narrows Bridge. The association also believes DOT's contract with United Infrastructure doesn't provide adequate public control over toll rates. Berschauer, however, while conceding DOT's handling of the project hasn't been perfect, ruled that none of the issues raised by the association are worth scrubbing the project.Not every stumble by the (Department of Transportation) renders the regulations invalid, he said. It can, but not always.You have to meet a very high standard of proof when you're dealing with constitutional issues, said Shawn Newman, attorney for the Peninsula Neighborhood Association. In a civil trial such as the bridge issue, he explained, the plaintiff normally only must prove the preponderance of evidence is on its side. In a criminal case, however, the defendant's guilt must be proved beyond a reasonable doubt.When you're challenging the state constitution, you have to meet the higher standard, even though it's a civil case, Newman said. In the end, the easiest thing a judge can do is come back and say, 'Well, you made a lot of good points here, but you didn't prove your case beyond a reasonable doubt.' I think that's what the judge was saying here, Newman said. I don't agree with him, but that's what I think happened.The state's side was happier.This was the first real test of the Public-Private Initiatives Act in court, and we obviously feel very good about the way it turned out, said DOT representative Jerry Ellis. We felt like we'd answered all (of the association's allegations) effectively, said assistant state attorney general Deborah Cade, but you never know how these things will turn out until the judge hands down his decision.Members of the association vowed to appeal the results of Berschauer's ruling. The lone bright spot for them is that the appellate judge will hear the case de novo, or as new.In a criminal case, you only appeal those issues on which you feel the judge ruled improperly or unconstitutionally, Newman said. But in this case, the appellate judge will hear the entire case presented all over again. We still feel like we have a very strong argument, and it helps that we'll be able to present all of it. Still, Newman conceded the odds of prevailing on appeal are against the association.I won't lie to you, he said. It's hard enough to win a case at this level. At the next level, you have the added burden of the appeals judge knowing your case has already been thrown out once. That makes it twice as hard.The association has 30 days to file an appeal from the time Berschauer's ruling is formally submitted, which should happen this week. Newman said he will ask to put the case on the fast track so that it can be heard before construction crews are scheduled to break ground on the bridge later this year.We'll move forward, Newman said. This is just round one in a long fight. Don't underestimate the resolve of these people to obtain justice."