BOSTON (CN) – A lawyer for Rhode Island faced stern questions Tuesday from the First Circuit while defending the state’s system of making only large trucks pay bridge and highway tolls.
Pushing the Boston-based federal appeals court to affirm dismissal of the case, the state’s Assistant Attorney General Michael Field tried to make the case this morning that road tolls qualify as a tax, which requires the trucking companies to bring their suit in state court pursuant to the Tax Injunction Act.
But the argument met with pushback from the presiding three-judge panel.
“You can’t point to a single case where what was called a toll was a tax,” U.S. Circuit Judge William Kayatta told Field. “None of them turn your way.”
Field replied that the issue hadn’t been decided because most of the previous cases had simply assumed that a toll was different from a tax without anyone raising the point.
This argument, too, did little to win over Kayatta. The Obama appointee speculated that, if for a long time “everyone has assumed that cats are not dogs,” there might be a good reason to think that they’re different animals.
Field also appeared to strike out today with his argument that tolls are more like a tax because they are authorized by the state legislature and used for a public purpose.
“Here’s the problem with that argument,” U.S. Circuit Judge Sandra Lynch interjected. “Any time the government raises money, it’s for a public purpose.” Lynch, a Clinton appointee, complained that Field’s position was “impossibly broad” and would convert anything that raised revenue into a tax. “That’s not what the Tax Injunction Act was about,” she added.
Field responded that Rhode Island is a small state and that everyone benefits from maintaining the highway system.
“What about non-drivers?” Lynch asked. “What about people who never go over the bridge?”
Lynch added that the Tax Injunction Act was specifically limited to taxes, not fees, and that turning everything into a tax would violate Congress’ intent.
For Kayatta, the case fell into the “fuzzy middle” between what is clearly a tax and what is clearly a fee, making it was hard to come up with a general rule.
Noting that it was Rhode Island that labeled the charges as a toll rather than a tax, he asked, “Why don’t we go with that?”
Kayatta said legislators would pay “a political price” if they chose to call something a tax rather than a toll or a fee, but in return they could avoid being sued in federal court. “If they’re willing” to pay the price, he suggested, “why not?”
Representing American Trucking Associations and three other companies that filed suit, Mayer Brown attorney Charles Rothfeld argued that the tolls are a “paradigmatic user fee” because they are set by the state highway department, are paid only by people who use certain roads and bridges, and go toward highway maintenance.
At the time the suit was brought, Rhode Island was collecting the tolls at two points on Interstate 95 with plans to eventually impose them at 10 other locations. The system has a cap that limits tolls for multiple trips in the same day, but the truckers allege that this cap, coupled with the tolls’ application solely to large trucks, “guarantees that interstate truckers will bear the majority of the cost of maintaining Rhode Island’s bridges.”
Governor Gina Raimondo said as much to reporters when the scheme was rolled out: “The reason I prefer the tolling proposal is because the majority of the burden is on out-of-state truckers.”
At appellate arguments today, the court also heard from Adler Pollock & Sheehan attorney John Tarantino, representing the Turnpike and Bridge Authority. Tarantino pointed out that if someone evaded a toll, the state tax authority had the power to try to collect it. But Lynch ridiculed the idea that the tax authority’s ability to go after a miniscule fraction of drivers was enough to turn the entire state tolling system into a tax.
The judges gave no indication as to when they would issue a ruling.