SJC: State has legal power to use Mass. Pike tolls to pay for Big Dig

By John R. Ellement, Globe Staff

The state’s highest court today threw out a class action lawsuit filed by commuters who had objected to tolls collected on the Massachusetts Turnpike being used to pay for the $24 billion Big Dig project.

All seven justices on the Supreme Judicial Court concluded today that the financing scheme, which was heatedly opposed by thousands of commuters, was legal. In the lawsuit, the critics of the financing scheme wanted the state to refund more than $440 million commuters had paid in Mass. Pike tolls, the SJC said.

“The issue presented in this case is whether the Massachusetts Turnpike Authority (authority) lawfully was permitted to use toll revenues collected from users of tolled roads and tunnels in the Metropolitan Highway System (MHS) to pay for overhead, maintenance, and capital costs associated with the MHS’s nontolled roads, bridges, and tunnels,’’ Justice Ralph Gants wrote for the unanimous court.

“We conclude that it was,’’ Gants wrote.

The ruling came in a 2009 suit filed in Middlesex Superior Court that challenged the constitutionality of forcing Mass. Pike commuters to pay for the Big Dig when people who actually drove through the project — which included depressing the old elevated Central Artery in downtown Boston and building a new tunnel to Logan Airport — were driving roads toll-free.

“The plaintiffs claim that the MHS tolls are unconstitutional taxes,’’ Gants wrote. But under the state Constitution, “there is no constitutional prohibition against toll revenues from certain highways and tunnels being used to pay the expenses of other highways and tunnels, or even mass transportation expenses. ‘’

The SJC said that both the Legislature and the executive branch have the right to determine where tolls are imposed, and must also have the freedom to decide how to spend the money raised through tolls.

“Where, as here, a public authority manages an integrated system of roadways, bridges, and tunnels, and chooses to impose tolls on only some of the roadways and tunnels in an amount sufficient to support the entire integrated system, its purpose does not shift from expense reimbursement to revenue raising simply because the toll revenues exceed the cost of maintaining only the tolled portions of the integrated system,’’ Gants wrote.

The class action lawsuit was first dismissed in 2009 by Middlesex Superior Court Judge Herman J. Smith Jr. The SJC today affirmed his conclusions.

“Because we conclude that the tolls collected by the authority on the MHS were fees, and because we conclude that they would still be constitutional excise taxes even if they were taxes, we affirm the dismissal of the plaintiffs’ state constitutional claims,’’ Gants wrote.

In a statement, state Transportation Secretary Richard A. Davey applauded the ruling.

“I’m pleased that the high court today reaffirmed our ability to maintain the MHS = using toll revenues,’’ he said. “These revenues allow us to properly maintain the system as a whole as the drivers and users of the system expect.”

John R. Ellement can be reached at ellement@globe.com.