“I will not issue a preliminary injunction in this case,” he said. “I’d like to write a long opinion because I find it intriguing, but I must give an opinion from the bench.”
The judge’s expressed views, that he interjected during and after the afternoon arguments, may have signaled his views about the future course of the lawsuit as it moves towards trial. The judicial comments must have sounded ominous to the towns of Portsmouth, Bristol, and Tiverton, which are together trying to bring a stop to tolling on the bridge, which they claim violates federal law.
At one point, for example, Portsmouth Town Solicitor Kevin P. Gavin referred to an affidavit that the Bristol Police Chief had submitted to the court, that described the increased traffic through Bristol streets that might be caused by tolls on the bridge.
“That’s all conjecture. I wouldn’t allow that at trial. It’s speculative,” said Judge Lagueux.
At another point in his argument, Mr. Gavin said, on the issue of irreparable harm, that “these tolls are really a big deal around the East Bay. They will have devastating effect.”
‘That’s speculative at best,” said the judge, interrupting Mr. Gavin.
Again, minutes later, Mr. Gavin said a major employer had stated in an affidavit he might have to leave Portsmouth as a consequence of the tolls.
Interjecting again, Judge Lagueux said, “We’re going to have to listen to him, aren’t we? Affidavits are opinion, and speculative at best.”
And later, interrupting Mr. Gavin’s argument again, the judge said that if the state didn’t get funds from tolls, it would “do a great harm to the state’s fiscal policy.”
On the issue of allowing Tiverton and Bristol to intervene in the case, initiated by Portsmouth alone, Judge Lagueux was discouraging, to say the least. Both towns are represented by Solicitor Andrew Teitz, who was present in court for the hearing.
At one point in his argument, Mr. Gavin asked the court to allow Mr. Teitz, who was sitting next to him at the counsel table, to speak to a point in contention about the tolls’ impacts on Bristol. The judge shot him down.
“I haven’t granted the motion to intervene and I doubt if I will,” said the judge. Mr. Teitz was not allowed to speak.
But it was on a legal issue of key importance to the case, that the judge’s words cast their longest shadow. He told the assembled lawyers that, “I’m just giving you a warning that the jurisdiction of the federal court over this issue could be a motion for a summary judgment issue.”
To a lawyer, that comment could easily be interpreted as an invitation for just such a motion, to ask the court to dismiss the case for lack of jurisdiction.
It wasn’t just his interruptions of Mr. Gavin, and lack of same during Jeffrey Gladstone’s arguments made on behalf of his client (RIDOT), or his apparent readiness to consider the jurisdictional issue into case, that portended ill for the Town of Portsmouth.
It was the reasons Judge Lagueux gave for his ruling against the preliminary injunction sought by Portsmouth that left little hope for optimism at a trial presided over by the judge.
A party seeking a preliminary injunction, Judge Lagueux said, “must climb four hills,” and the Town of Portsmouth “has failed to jump all of these hurdles. It has failed in every respect.”
The judge then one by one listed the four hurdles, and explained why Portsmouth had fallen short of clearing each.
First was whether the party asking for the injunction might succeed on the merits. Second was the potential for irreparable harm if the injunction was denied. Third was the balance of equities and hardships to the respective sides if an injunction was granted or denied. Fourth, was the effect of the court’s ruling on the public interest.
Though the judge’s reasoning was legally technical at times, his position was clear.
“I doubt if the plaintiff [Portsmouth] will succeed in state court,” he said at one point.
The town “has failed to show irreparable harm,” he said at another.
“The town does not have the right to represent its citizens. The citizens if they want to can come forward.”
He continued. “If the injunction were granted the state could lose a lot of money,” he said, citing figures he understood were in the range of an estimated $4 to $5 million monthly.
He said, on the other hand, that “the hardship to vehicles paying tolls is uncertain,” and to say “that people will forego going over the bridge is pure conjecture.”
After denying the requested injunction, and giving his reasons, Judge Lagueux invited lawyers to a “scheduling conference” to set up pre-trial discovery in the case, obviously favoring a process that in his view would allow a better understanding of “what effects the tolls will have.”
This Wednesday’s hearing was the second time the judge has knocked down an attempt by Portsmouth to stop the tolls. At a hearing last week — on a temporary restraining order — the judge denied an emergency work stoppage request, which had been sought to bring an immediate and temporary stop to work on the bridge tolling system. Eleven lawyers were present at that hearing, according to one of them who was there.
The hearing Wednesday, June 5, was packed.
Four lawyers were there from Partridge Snow & Hahn, led by counsel Jeffrey Gladstone, who said he was billing his client RIDOT $310 per hour for his time, “substantially reduced from my normal hourly fees.” It could not be determined how much the other three lawyers from his firm were billing RIDOT.
Also present at counsel tables or in the court were were lawyers for the Rhode Island Turnpike and Bridge Authority, and the Federal Highway Administration.
Including media, all seats in the courtroom were taken, with about 25 people present.
Judge Lagueux, 82, was appointed to the court by President Ronald Reagan in 1986. A graduate of Bowdoin and Harvard Law School, he practiced law in Providence from 1956-1968, and was a Superior Court Judge for 18 years before his appointment to the federal bench.