[BIKE] Legally Speaking - with Bob Mionske: The right to go from point 'A' to point 'B'

[John Boyle]

http://www.velonewscom/news/fea/6886.0.html   Legally Speaking - with Bob Mionske: The right to go from point 'A' to point 'B' By Robert Mionske JD This report filed September 2, 2004 Dear Bob, I am curious what you think of the recent Toronto court decision that the City of Toronto owed cyclists a duty of care to maintain a safe cycling environment. N.D. Colorado Dear Bob, The main highway in our area is scheduled for repaving. This will close one side of the divided including both shoulders for a ten-mile stretch over a six-month period. The section is used by hard-core commuters and is a popular ride for those who want to get out of town for the weekend. What are the contractor's obligations to accommodate bicycle traffic? What are my rights when a "bike lane closed sign is encountered" on a commute? J.M. Arizona Dear N.D. and J.M. First, let's look at the Toronto Case. Several of you have emailed me about this suit, Hannah E. Evans v. City of Toronto. It was a heard in a Toronto small claims court (File No. T64013/02), had no written case findings issued, and was not appealed. Because it was heard in small claims court and was issued with only an oral opinion, there is no "precedent" and nothing for lawyers or other judges to consult-the comments of the judge, if any, were simply the opinions of one court. The internet commentary on the case can be tracked back to a single source, an expert witness in the case who filed an affidavit largely based on the 1999 version of the Guide for the Development of Bicycle Facilities, published by the American Association of State Highway and Transportation Officials (AASHTO). The affidavit can be found online. Can You Close a Road to Cyclists? The Constitutional "right to travel" is a funny creature. Everyone knows it exists, but no one seems to know where-it is not explicitly stated, and one federal judge found that at one time or another, the Supreme Court had attributed seven different clauses of the constitution as the source of that right. To make things even more complicated, the ‘right of travel" really isn't a right of travel-it is more accurately described as a right of migration from one state to another without interference. However, in a 1972 Pennsylvania case involving a teenage "cruising" ban, a federal judge said that there truly is such thing as "the right to go where you want:" The right of locomotion, freedom of movement, to go where one pleases, and to use the public streets in a way that does not interfere with the personal liberty of others are basic values implicit in the concept of ordered liberty . . . One may be on the streets even though he is there merely for exercise, recreation, walking, standing, talking, socializing or any other purpose that does not interfere with other persons' rights . . . uninhibited movement is essential to freedom. Travel by a particular mode of conveyance, however, is a different story. In 1978, cyclists in Omaha, Nebraska sued the Nebraska and Iowa highway departments because they closed three of the four bridges across the Missouri River to cyclists. In the case, Wherrett v. Doyale, the cyclists argued that many of them had to go miles out of their way to get back and forth between Omaha and Council Bluffs, and in the event of an accident or construction on the fourth bridge, they would have no access at all. The court was unsympathetic: A threshold question is whether there exists a constitutional right to travel by a particular means to travel. [The Supreme Court] long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land . . . However, it is a different matter entirely to say that traveling by bicycle is similarly protected . . . The right to travel does not require the state to avoid any regulation of methods of transportation if would have only minimal effect. The court went on to say that even if travel by a single mode were constitutionally protected, all that would be required of the highway department would be a showing that the ban was "rationally related" to protecting the safety of cyclists on unsuitable roads. (I have a second-hand report that a judge in Ontario in 1991 rejected this same argument, noting that banning cyclists because the road was too dangerous for them "was the ultimate example of the legal tail wagging the dog." However, I have not been able to find this Canadian case. If any of our colleagues north of the border have any leads on this, I would appreciate an e-mail .) A logical retort would be "is the same true for cars?" Yes, single-mode travel by automobile is not constitutionally protected. The issue has been used (unsuccessfully) to fight the suspension of drivers' licenses by those collecting too many moving violation "points." In 1987, the City of New York passed, with 10 days warning, a regulation banning bicycles on Madison Avenue for 90 days to facilitate utility repairs, although it was widely believed a permanent ban was planned. The New York Association of Bicycle Messengers sued, (Assn. of Messenger Services v. City of New York), claiming the ban violated both state and federal constitutions and the procedure in the city's charter enacting new administrative regulations. The court ducked the constitutional issues entirely, but agreed the ordinance was invalidly approved: Although no public hearing is mandated [in the charter] before a regulation becomes effective, the right to communicate views to the decision maker before the decision is made is certainly more in harmony with the democratic process than to permit a commissioner to change governing rules overnight without notice to the community or the segment of the population affected. On the other hand, ten year later, a New York judge, in Kaehny v. Lynn, threw out an injunction prohibiting the city's DOT from closing the bike lanes on the Queensboro Bridge for most of the day to facilitate construction. Unlike the Madison Avenue case, the DOT already had statutory authority to close vehicle or bicycle lanes: The city charter gives the DOT the authority to post traffic signs regulating pedestrian and vehicle traffic on city bridges. Based on these existing rules-which were inapplicable to the situation presented in Messenger Services, the DOT has the authority to regulate pedestrian and cyclist access. And unlike Messenger Services, the judge in this case was willing to confront the constitutional issues the cyclists raised. The outcome was not pretty: This attempt to couch the DOT's actions in terms of a constitutional right cannot save petitioner's application. Even if the court were to presume the existence of a constitutional right of [local] travel, that right would not extend to a particular mode of travel. Highway safety regulations, such as the restriction at issue here, enjoy a strong presumption of validity . . . The lane restriction imposed by [DOT] involves questions of judgment, discretion and the allocation of resources and priorities which are inappropriate for resolution in the judicial arena. One of the most unusual cases in the history of bicycle law similarly occurred in New York, in 1991, and also involved the bike lanes on the Queensboro bridge. (People v. Gray et al) To facilitate the flow of motor vehicles, the city moved bikes from a dedicated lane to the sidewalk, using the former bike lane for traffic, and opened a tightly-spiraled access ramp formerly used only by bikes to mixed traffic. Transportation Alternatives, a local advocacy group, protested and blocked the former bike lane. After being arrested, they dispersed without incident. At trial, they pled not guilty to disorderly conduct by reason of necessity, claiming their action was necessary to prevent a greater evil. The judge explained their defense: Through their testimony and that of their experts . . . it was clear that these defendants were motivated by the desire to prevent what they called the "asphyxiation of New York" by automobile related pollution . . .they also acted to prevent serious injuries to those individuals who continued to alternative forms of transportation on the bridge. And the judge bought it!   "In this case . . . it is clear that defendants chose the correct societal value. It is beyond question that both the death and illness of New Yorkers as a result of additional air pollution, and the danger to cyclists and pedestrians posed by vehicles on the south [approach ramp] are far greater harms than that created by the violation of disorderly conduct. A more difficult issue is whether the defendants' perception of harm was reasonable . . . The only road open to bicyclists and pedestrians is now practically inaccessible to them during the hours most critical to their return home. [The DOT's own study acknowledges] that the current level of bicycle ridership in New York City is indicative only of those individuals who are so dedicated to cycling that they are willing to utilize a transportation system that has been shaped for decades without provision for them . . . The defendants are therefore acquitted and released." Good luck- Bob (Research and drafting assistance provided by Bruce Epperson J.D.)