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Update on Metro v. Scarborough

Rad Sallee has an update on the lawsuit filed last year against Metro by anti-rail activist Daphne Scarborough.

[Scarborough’s attorney Andy] Taylor wants a jury to decide whether Metro is violating what rail opponents view as a promise, made in a 2003 transit referendum, to build the line solely on Westpark.

Metro rejects that interpretation of the ballot language and says the routes described in the referendum were actually corridors in which specific alignments would be determined based on ridership, cost and other factors.

Metro has asked state District Judge Levi Benton to dismiss Scarbrough’s lawsuit on grounds that she lacks legal standing to file it.

Metro lawyers said the agency is protected by sovereign immunity, which basically says government can’t be sued for legally carrying out its duties.

They also contended that because construction of the line has not begun, Scarbrough has not been harmed.

Taylor asked Benton to deny Metro’s request for dismissal.

If his client cannot bring suit until she is actually harmed, it will be too late to stop a possibly illegal rail line from being built, Taylor said.

Benton held off on a ruling, telling both sides to come back later.

But he said he intended to deny Taylor’s request. That would open the door to considering whether Scarbrough had standing to sue.

Taylor said it would also enable Scarbrough to get a quick appellate ruling against Metro, and that, he said, could lead to a jury trial by September to determine whether Richmond rail is legal.

Locke said Benton had simply indicated he will rule as Metro asked.

As I understand it from speaking to Robin Holzer, who was at the hearing, what Judge Benton was going to rule on was Taylor’s motion – a motion to abate, I believe is the term – to deny Metro’s request to have a hearing on the issue of Scarborough’s standing. The reason for the delay was that Taylor announced he had additional material for his motion, namely an amicus brief from Rep. John Culberson, a copy of which you can find here (1.2 MB PDF). Judge Benton handed out a draft copy of his ruling, which was to deny Taylor’s request, but that will wait until after he reviews the amicus brief. I believe his ruling will come some time this week, at which point Taylor will presumably pursue an appeal, which be expedited. These are all small steps, to be sure, but they need to be taken to get anywhere.

Assuming Taylor gets no joy on his motion to abate, then the next step will be Metro’s motion to dismiss on grounds of lack of standing. If Metro wins that – they also have a motion for summary judgment on the merits of the case in the queue – that would the end of this lawsuit. That doesn’t mean Scarborough or someone else couldn’t sue again once construction begins, or at some other point when they can claim they are being actively harmed by Metro’s actions, but it would close this chapter. At least, that’s my read of it – if any lawyer out there wants to set me straight, by all means please do so. If this thing does go to trial, based on what Taylor was saying in court it sounds like that might happen in September. One way or the other, we should have a clearer idea of what obstacles Metro still has to face pretty soon.

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One Comment

  1. Jay says:

    The two lawyers I asked to read the briefs both responded that the case clearly had no standing and that Culberson’s friend of the court letter was confusing in that he displayed a misunderstanding of the constitutional separation of the branches of government, he did not present an argument relevant to the case, and when you in fact look at the statute he put into law, he is wrong about what it says.

    How much more of our transit funds does Daphne want spent on her frivolous lawsuits?