James McCusker column in Everett Herald

One of the favorites on "Sesame Street" involved a song, "One of these things is not like the others." This was a recurrent lesson on the children's educational television program (as it was on the SATs) and usually involved picking out the ringer in a bunch of objects. They would show a picture of, say, a square mixed in with three differently-shaped triangles. And picking out the square as the different one would give the show's adults an opportunity to explain to the Muppets, and the kids at home, something about geometric shapes.

This kind of mental exercise is pretty fundamental to the educational process - which is why, of course, it was on "Sesame Street." To get along in this world we need to know the fundamental characteristics of "things." When is something a square and when is something a triangle...and what are the defining characteristics that allow us to tell the difference?

An important legal case in the State of Washington involves just this kind of distinction. Instead of child's play and songs there are billions of dollars involved, but everything hinges on the same fundamental question: when is something the same and when has it changed so much that it is different?

The "something" in this instance is the Light Rail system that Sound Transit wants to build. Voters in 1996 approved a measure authorizing the construction of this system, and since then a lot of public money -- over a billion dollars-- has been spent on designs and plans. And now Sound Transit is ready to start digging and building.

The Light Rail system involves questionable economics and an organization called Sane Transit has voiced its opposition to constructing the system. In their view it is not a cost-effective use of public money because of its negligible impact on traffic congestion, and its operational losses which will require continuing taxpayer subsidy.

Sane Transit filed a lawsuit to force a review of this project - essentially asking the court to stop any construction efforts on the grounds that the system as currently planned is different from the system approved by the voters, and needs to be resubmitted for their approval.

There has been a decision in this case. On 1 November, King County Superior Court Judge John Erlick denied Sane Transit's motion to stop construction of the light rail system. The essence of Judge Erlick's view is this: while the rail system now planned is clearly different from the one voters approved, the voters also gave Sound Transit the authority to make those changes.

This view is unfortunate for us - whether you support or oppose the light rail system - because it devolves into a "what did they know and when did they know it" issue. Did the voters realize that they were granting Sound Transit so much authority to spend money and change things around when they approved the project? Was the information on the ballot and in the Voters' Pamphlets adequate for voters to make an informed choice on this issue? We all know where this kind of thinking about voter knowledge and intent takes us -- just play back the videotapes of the 2000 election results in Florida to refresh your memory.

There is also a risk that Judge Erlick's view could unintentionally provide a roadmap for public agencies to seek broad, essentially unchallengeable authority by employing disingenuous project descriptions when public works projects are submitted for voter approval and financing. To figure it out, the poor taxpayer might have to be represented by counsel right there in the voting booth.

The fundamental question of when a project has changed so much that it has to be presented again to the voters, then, remains to be addressed.

Sane Transit is planning to appeal the decision, but even if the Supreme Court agrees to hear the case on an expedited basis, it is not certain whether they will take up the "difference" or the "authority granted" aspect of the case. Judge Erlick's decision focused on "whether the decision to modify the plan substantially deviates from the authority granted by the voters." If the Supreme Court also focuses on that, they could end up parsing sentences in the Voters' Pamphlet while the taxpayers are left to confront a rerouted, abbreviated light rail system that will take years longer to build and cost twice as much.

Whether you are in favor of light rail or oppose it, this would not be a good precedent to set for public works projects. Our transportation systems are in sore need of attention, but we voters need some reassurance that projects that are built at least bear some resemblance to the projects we approved. Even a Muppet could figure that out.

- JAMES MCCUSKER