TriMet sues Clackamas County (UPDATED)

TriMet has filed a lawsuit against Clackamas County, demanding that it follow through on contractual obligations related to the MLR project, specifically a few outstanding obligations concerning land near the Park Avenue station needed for the project. The County Commission is claiming that any further cooperation with TriMet on this is contingent on a popular vote, pursuant to Measure 3-401, which cannot be held until May at the earliest. TriMet claims that Measure 3-401 does not apply (retroactively) to MLR; that the County’s actions are causing delay, and is demanding the court order “specific performance” in the matter, and command the County to convey the properties (and pay the outstanding financial obligations) due to TriMet under the IGA (inter-governmental agreement), signed by the County prior to the current Commission being elected. TriMet also alleges that the matter is urgent (due to the construction schedule), and is requested expedited consideration.

The County claims that Measure 3-401 is retroactive, covers MLR, and that it is unable to make any further contributions to MLR without a vote of the people.

The complaint. Oregonian coverage.

UPDATE:

Some analysis, after the jump.
A slam dunk?

From a legal perspective, this ought to be a slam-dunk for TriMet. There is ample case law that the Contract Clause of the US Constitution (Article I, section 10, clause 1: “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility”), and similar language in the Oregon Constitution, forecloses the County’s actions. The County duly negotiated a contract, and is obligated to honor it–states and local governments may not use their legislative power (whether via the primary legislative body, or via the people exercising such power through the initiative) to abrogate contracts they are a party to. There is no argument that Measure 3-401 applies to the future–and I expect that further rail projects in the County will be a long ways off–but virtually everyone with an informed opinion on this–including the county’s own counsel–has come down on the side of TriMet.

Even in cases of clear fraud, the Contract Clause prohibits abrogation of contracts. Two hundred years ago, the Supreme Court decided Fletcher v. Peck, a case in Georgia in which corrupt Georgia legislators had passed laws authorizing the sale of Indian lands to land speculators (who had bribed many of the legislators in question). Revelation of the corruption caused a scandal, and a reform legislature was elected, when then passed a law essentially voiding the prior land sales. The case went to the Supreme Court, which held the corrupt legislature’s acts to be valid (as they constituted a lawful exercise of power, even if illicitly induced), that the reform legislature’s attempts at voiding the land sales was a violation of the Contracts Clause.

Time is money

That said–there is a chance the County could drag this out, and perhaps extract some concession from TriMet; assuming the state legislature didn’t decide to intervene.

Why? Time is money.

You’ll notice that TriMet has requested expedited consideration of the matter by the courts. It has a construction schedule to meet, it cannot build certain parts of the project until it possesses title to the land underneath, and time is money. Also note the relief requested: While part of the relief is financial (payment of nearly $2M that TriMet claims it is owed by the county), TriMet is also demanding specific performance of the contract–conveyance of the real estate in question to TriMet. Specific performance is a common relief granted in real estate disputes, due to the non-fungibility of land, but unless TriMet can convince a judge (and initially, it least, will be Clackamas County District Court that hears this matter) to issue a summary judgment, the court may be unwilling to grant this relief on an expedited basis.

There’s one other aspect to specific performance–it’s what is considered “equitable” relief (along with injunctions) as opposed to a “legal” relief (i.e. damages, or money). As such, a party opposing a demand for specific performance may choose to raise various equitible defenses–one of these being “unclean hands”. I would expect the County to accuse TriMet of all manner of unsavory conduct in its prior dealings on the subject, and to issue broad discovery requests as to TriMet’s relations with its various project partners. While such requests might ultimately prove unfruitful–unless TriMet was underhanded in its prior dealings with Clackamas County, I doubt an unclean hands defense would stick–such discovery might uncover facts embarrassing to the agency and/or its officers–or simply take time. And time is money.

There’s also the matter of appeals. No matter who wins in District Court, I expect the losing side to appeal the decision. TriMet probably has better chances in appeals court than the County does (not to cast any aspersions at the District Court), but any appeal adds delay. And time is money.

There could be pressure on the agency to reach a settlement.

What does the County want, anyway?

Last month, the County Commission sent a letter to TriMet asking it to end MLR at Tacoma Street, north of the County line. TriMet, unsurprisingly, refused. While TriMet could conceivably omit the Park Avenue stop (the MOS to Milwaukie is an approved alternate in the FEIS), ending at Tacoma Street is not an approved design option; plus construction is already underway in Milwaukie already.

The County might also simply want its money (that was paid to TriMet last year, prior to the election of the new Commission) back–and is simply trying to renegotiate the deal to that end. Or, commissioners may be looking for a symbolic victory against the agency, even if they cannot meaningfully stop the project. Whether negotiations between the County and TriMet have been going on behind the scenes, or both sides have proceeded from ultimatums to litigation, I have no idea.

The legislative angle

One risk for the county–is that the Legislature might step in.

It’s rather unusual for municipal entities within Oregon to sue each other. As both TriMet and the county are political subdivisions of Oregon, incorporated under Oregon law and having no independent sovereign authority, one course of action would be for the state Legislature to intervene. And were it to do so–I doubt that would be good news for Clackamas County. The State of Oregon has appropriated $250M to fund MLR; there’s no sign that the current legislature or governor is opposed to the project–and indeed, Clackamas County interfering with MLR might set a precedent that Salem wishes to avoid as it tries to get the CRC done. Furthermore, the County has engaged in some dubious actions in furtherance of the Sunrise Corridor project, actions which have gotten it sued. The county didn’t win friends, either, with the initiative to repeal the drivers license surcharge intended to fund the Sellwood Bridge.

It wouldn’t be out of the realm of impossibility for the state Legislature and the governor to squash the county on this one–invalidating 3-401, for instance. While the Legislature cannot usurp the judicial function of the courts, it could conceivably yank the chair out from under the county by striking the law on which the county’s lack of cooperation is based.

The bottom line

How will this all turn out? Obviously, nobody knows for sure–but this is uncharted territory. I suspect that whatever happens in this case, won’t be the end of things–that TriMet can expect future non-cooperation from Clackamas County as long as the current commissioners are in office. Might the entire county try and withdraw from TriMet (or Metro)? It’s possible, and it’s certainly been discussed around many water coolers there; and the present lawsuit might serve as the justification for initiating such an action.

Stay tuned….

23 Comments

23 Responses to TriMet sues Clackamas County (UPDATED)

  1. Anandakos
    March 7, 2013 at 6:24 pm Link

    It seems like we need a friendly merger between Clackistan and Vantucky.

  2. Douglas K.
    March 7, 2013 at 8:25 pm Link

    This sounds like a great way to stall the CRC. Just sayin’.

  3. al m
    March 7, 2013 at 10:44 pm Link

    This sounds like a great way to stall the CRC. Just sayin’.

    ~~~>They can drag it out ten years!
    What I object to is tax payers funds being used to fight with other tax payer funds.

    The absurdity is palpable

  4. John Reinhold
    March 8, 2013 at 8:57 am Link

    Just stop spending money at Clackamas county businesses.

    Tell the county and the chamber of commerce. No more shopping at Clackamas town center, Lake Oswego, Wilsonville, or other businesses.

    Let them know that a contract is a contract. No matter what political affiliation or opinion on transit – we can’t allow a society where contracts can be ignored on a whim…

  5. Anthony
    March 8, 2013 at 10:29 am Link

    Regardless of the outcome, I highly doubt TriMet wants its dirty laundry aired out in discovery. My money is on a settlement.

    Additionally, I like the idea of the County dropping out of TriMet and funding their own transit system. Washington County would most likely follow their lead. County ran transit is pretty common nation-wide.

  6. John Henry Burns
    March 8, 2013 at 10:51 am Link

    If under some unlikely scenario the county is able to stop construction, would the county potentially be liable to reimburse Trimet for the construction expenses already incurred in Clackamas County?

    It seems to me that moving forward with the project and honoring existing contracts is the most fiscally conservative option for Clackamas County.

  7. Anandakos
    March 8, 2013 at 11:24 am Link

    @Anthony.

    Tri-Met might certainly become “Bi-Met” without too much harm. WES would go bye-bye, because the maintenance facility and storage yard is in Wilsonville. There wouldn’t be too many tears shed over that.

    The Green Line might have to be truncated at Flavel Street, or perhaps Clackistan would agree to pay for operations to the TownCenter mall. Who knows?

    But to separate Multnomah and Washington Counties would be nearly impossible. While WashCo could conceivably run its own bus system, what would you do with Westside Max? The county line is just west of the zoo station. Would Washingon County run its own trains on “trackage rights” from the zoo station?

  8. Nick theoldurbanist
    March 8, 2013 at 11:45 am Link

    WHOA! You guys are getting carried away here. No county is seceding from anything.

  9. Anthony
    March 8, 2013 at 11:46 am Link

    I am pretty sure TriMet would still have to operate the rail lines as a condition of all that “free” federal money they received. The counties could choose to help pay for it (highly doubtful in Clackamas). Its also possible that Metro would take over rail service, leaving each county to run its own bus network.

    Transit service wouldn’t just abruptly end at the county line. Clackamas could develop a good local bus network with express routes into job centers; much like they do up north in the Seattle area.

  10. Grant
    March 8, 2013 at 1:37 pm Link

    Can a jurisdiction unilaterally secede from the trimet district? I recall reading about the trimet board voting to approve boring’s secession.

  11. zefwagner
    March 8, 2013 at 3:30 pm Link

    Yes, the board must approve any secession. They have generally granted them, because they have been smaller towns and rural areas on the edge of the district that were hard to serve anyway. Clackamas Town Center, Milwaukie, Oregon City, and Lake Oswego would be a very different story. I continue to think the entire Portland metro area should become its own single county, roughly matching the urban growth boundary. That would solve a lot of these problems.

  12. EngineerScotty
    March 8, 2013 at 3:40 pm Link

    Yes, the board must approve any secession. They have generally granted them, because they have been smaller towns and rural areas on the edge of the district that were hard to serve anyway. Clackamas Town Center, Milwaukie, Oregon City, and Lake Oswego would be a very different story. I continue to think the entire Portland metro area should become its own single county, roughly matching the urban growth boundary. That would solve a lot of these problems.

    Careful what you wish for. After all, Tom Hughes and not Bob Stacey won the last Metro council presidential election; in several other “incorporated metros” (like Indianapolis) the burbs dominate the central city, and slash funding for things like transit and such.

  13. Anthony
    March 8, 2013 at 5:23 pm Link

    The words “consent to be governed” come to mind…

    The TriMet board is unelected, they can’t just impose their will on unwilling participants.

  14. Nick theoldurbanist
    March 8, 2013 at 9:49 pm Link

    I don’t think that there is any way large parts of Washington Cty. would want to merge with Portland, given what they see as Portland mismanagement and otherproblems.

  15. Erik H.
    March 8, 2013 at 10:46 pm Link

    Tri-Met might certainly become “Bi-Met” without too much harm. WES would go bye-bye, because the maintenance facility and storage yard is in Wilsonville.

    Wilsonville is outside of TriMet’s district. That means that TriMet’s WES maintenance facility exists outside of the TriMet district. And those maintenance personnel, and the WES management, work in a facility outside of the district of which they are employed by.

    TriMet does not encompass the entirety of the three counties – for example in Washington County – North Plains, Banks, and Gaston are not in TriMet’s district. Neither is Corbett or Sauvie Island.

  16. Erik H.
    March 8, 2013 at 10:52 pm Link

    what would you do with Westside Max? The county line is just west of the zoo station. Would Washingon County run its own trains on “trackage rights” from the zoo station?

    Why not? There is overlap in the NEC between different commuter agencies (ConnDOT and Metro-North); there is overlap between Metrolink and Coaster in San Diego County.

    Most likely in such a scenario Washington County would provide the service west of PGE Park (and a new turnaround built there) but TriMet/Portland/Metro or whatever agency is responsible for the line from downtown east would provide some funding in exchange for providing the local service. Just as C-Tran used to pay TriMet to run buses into Vancouver (and I believe now TriMet pays C-Tran to provide local service between Delta Park and Hayden Island).

  17. Anandakos
    March 8, 2013 at 11:39 pm Link

    @Erik,

    I guess that if MultCoMet didn’t go west then all of its trains could use the Mall and WashCoMet could use the original east west line, turning around in a loop around the zero hundred block between Morrison and Yamhill.

    Yeah; that could work. Hmmm. Oh well, it might happen if the Feds would agree.

    Should make Tootles very happy, if so.

  18. Nick theoldurbanist
    March 9, 2013 at 8:20 am Link

    I reiterate: Nobody is seceding from anything. That’s just the reality here in Portland Metro.

  19. Reza
    March 9, 2013 at 7:47 pm Link

    All this discussion about what happens to Westside MAX if Washington County secedes from TriMet is unnecessary. There is no way that TriMet would not continue to operate the line in full from Hillsboro to Gresham, with Washington County providing local feeder service to the rail stations. Having separate agencies operate their own services to the county line (or even with minimal overlap in Downtown) would be a logistical nightmare and severely harm the usability of the existing Blue Line as built. Most, if not all, of the existing TriMet bus routes solely in Washington Co. would be transferred to the new agency, but some regionally significant routes like the 54, 56, and 57 may stay under TriMet operation.

    Multiple transit agencies can serve a single area, it happens in other regions all of the time like with Sound Transit and county bus agencies in Puget Sound. How else do you think the Yellow Line MAX extension will be operated in C-TRAN’s service area?

  20. Anandakos
    March 10, 2013 at 7:57 am Link

    @Reza,

    Yes, but ST was added long after Metro was constituted, and is specifically tasked with development of a “regional” spine overlaying Metro’s system. They’ve gotten much too duplicative in King County, and it’s a mess of different routes in downtown Seattle and different fare structures, though.

    Somebody hoped that Washington County would follow Clackamas County out of Tri-Met (should Clackistan exit).

    Those sort of “bust ups” (think of the fights over the “kids’ best interests” in a resentful divorce) rarely result in a happy partnership in the aftermath. There would probably be endless fights about Tri-Met “overcharging” WashCo and CC should the agency break up, just as the bobos in Clark County are saying that C-Tran “will be financing Tri-Met’s billion dollar health care plan”.

  21. Nick theoldurbanist
    March 10, 2013 at 9:26 am Link

    “They’ve [ST] gotten much too duplicative in King County, and it’s a mess of different routes in downtown Seattle and different fare structures, though.”

    >>>> Yeah, but paying with ORCA is a snap, no matter what system you use, or what trips you take.

  22. Chris I
    March 10, 2013 at 3:34 pm Link

    Seattle transit is daunting for visitors. One of the main advantages of public transit in a city (cheap alternative to taxi, car rental) is nearly destroyed by the confusing agency overlap and lack of day passes. If you visit Portland and you want to get around the city for the day, you buy a $5 day pass and you are done. You can go anywhere. No worries. In Seattle, they have no day pass and you have to use different fares on different busses. ORCA cards are $5 up front, and trips that mix transit agencies end up costing a lot of money.

    My wife and I rode the Metro busses a few times during our last trip, but ended up walking everywhere else.

  23. Erik H.
    March 16, 2013 at 8:14 am Link

    Anyone who wants to tell me that multiple agencies can’t work…go spend some time in Long Beach, California.

    In just 20 minutes I saw buses from four different agencies (Long Beach, LADOT, LACMTA, Torrence Transit) and trains from one agency (LACMTA).

    It can be done in Portland. It’s just that Portlanders/TriMet insist on having control over everyone else, leaving the suburbs who pay the taxes with subpar service while we subsidize unnecessarily overlapping bus/Streetcar/light rail service in downtown Portland.

    If multiple rail operators can’t be done, explain that to New York, where NJ Transit, Connecticut DOT, Long Island Railroad and Metro-North Railroad all share resources and operate trains on the same tracks to the same station – along with Amtrak.

    Seattle transit is daunting for visitors…they have no day pass and you have to use different fares on different busses. ORCA cards are $5 up front

    I was just in Seattle last weekend. Wasn’t a problem for me. I agree the lack of a daypass was not convenient, but I didn’t have to “use different fares on different buses”. The ORCA card was actually extremely convenient and let me seamlessly transfer from one mode to another.

    In Portland, you pay your $5, go to a transit center, realize that your bus is five minutes late so you missed your connection and have a long wait to the next bus, leaving you stranded. Or, to a bus line that…oh, crap, it’s a weekday rush hour only bus. But, there’s always a Streetcar willing to take you…well, where does it go? The Multnomah County Elections Office? So does the 6 bus.

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