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Road Rights – Jerry Brown Doubles Down

By October 23, 2012October 23rd, 2021No Comments

The last weekend in September was ushered in by warm and sunny autumn weather in California—and across the state, cyclists were out in force. In San Francisco, 5,000 cyclists from around the world gathered to celebrate the 20th anniversary of Critical Mass, a monthly ride that began in San Francisco but has since spread around the world. And in Los Angeles, cyclists continued to redefine Los Angeles street culture by celebrating the much-feared-by-motorists Carmageddon II with—what else?—a weekend-long series of bike events.

But while California’s cyclists were riding the wave of the future, in Sacramento, California’s governor seemed more determined than ever to yank the state backward to the mid-twentieth century: For the second time in less than a year, Governor Jerry Brown vetoed a law requiring California drivers to give a minimum of three feet when passing cyclists.

Governor Brown had first vetoed a three-foot passing law last October, raising his concern that the law would require drivers to slow to 15 mph to pass a cyclist. The only problem with that concern was that there was nothing in the law that required this. Instead, the law would have allowed drivers to pass cyclists at a distance closer than three feet if the driver is traveling at 15 mph or less, but would have required drivers traveling above that speed to pass cyclists with at least a three-foot buffer. Brown’s alleged concern with the law was entirely imaginary.

Nevertheless, while using his veto to protect aggressive and unsafe drivers, the governor assured California cyclists that improving bicycle safety is “a goal that I wholeheartedly support.” In fact, Brown personally promised the bill’s author, state senator Alan Lowenthal, that he would sign the legislation if the 15-mph language was removed. Taking him at his word, Senator Lowenthal revised the language and set about building the coalition of statewide support that would be necessary to get the bill through the legislature. The new legislation was sent to the governor and, confident that his concerns had been addressed, California cyclists eagerly awaited his signature.

So what went wrong this time? In his most recent veto message, Brown raised a new issue—his concern that allowing drivers to cross a double-yellow line when passing a cyclist would expose the state to a risk of “deep pocket” lawsuits. But as the California Bicycle Coalition noted:

While this provision was also contained in SB 910, last year’s 3-foot passing bill, concerns about liability were not raised by anyone during the last legislative session. Nor were they expressed during legislative hearings and floor debate about SB 1464, even by the Department of Finance, which tracks the fiscal impact of legislation. In fact, it appears that state law already gives the state immunity from the kind of liability he cites.

In other words, the governor’s concern about state liability when drivers cross a double yellow line took everybody by surprise. If Brown were truly as supportive of improving bicycling safety as he says he is, wouldn’t he have said something before his veto?

Brown says he did raise the issue with state senator Lowenthal, and claims that senator Lowenthal “declined to amend the bill.” And yet until the veto, nobody in California had heard the governor’s objections to the bill.

So what happened? According to the state senator’s chief of staff, nobody had raised any concern about lawsuits during the yearlong process of shepherding the bill through the legislature. But two weeks before the legislative session ended, CalTrans (the state transportation department) made a last-minute request for a new provision in the bill that would completely exempt the state from any and all liability for crashes where the driver crossed over the double yellow line to pass a cyclist.

This was a bombshell. Adding the new language would completely destroy the coalition of support for the legislation that Senator Lowenthal had carefully pulled together, and with two weeks before the end of the legislative session, there would be no time left to rebuild the coalition. It was pass this bill, or nothing—especially considering that this was Senator Lowenthal’s final term in the Senate. And because the governor had promised to sign the bill, and had not in any way expressed support for CalTrans’ last-minute request, the bill was passed and sent to the governor’s desk without the change.

Now the legislation is dead, and may never return. The first time the governor vetoed the safe-passing bill, he cited his concern about an imaginary provision. Is Brown’s new objection reality-based this time? Could a motorist involved in a head-on collision really sue the state? Theoretically, yes, but such a lawsuit would be highly unlikely to succeed.

Brown is claiming that because of its perceived “deep pockets,” the state is a likely magnet for lawsuits where the state has some liability. This much of the governor’s statement is true. However, there’s a world of difference between somebody wanting to sue the state, and somebody successfully suing the state. The problem with Brown’s argument is that while the law would have allowed drivers to cross the double-yellow line when passing a cyclist, it did not require them to. Instead, the law would have allowed drivers to cross the double-yellow line only when it is safe to do so. In fact, the new bill was very specific about when a driver could lawfully cross the double yellow line to pass a cyclist. Basically, the law legalized what many safety-conscious drivers already do anyway. Unsafe passes would remain illegal.

So if somebody crossed the double-yellow line when it is unsafe to do so—for example, on a blind curve, or at the crest of a hill—the state would have no liability, because the state did not allow the driver to make an unsafe pass. It’s the same as any other illegal act—the state can’t be held liable just because some driver violates the law. And even ignoring that basic legal reality, the state can only be sued under certain circumstances, and there are a number of legal defenses specified by law for those circumstances where the state can be sued. The bottom line—just because the state has deep pockets doesn’t mean that the state can be held liable for a driver violating the law.

The reality of the situation is this: While expressing his continuing support for improving bicycling safety, Governor Brown invents new excuses for doing nothing. And who benefits? Aggressive and unsafe drivers.

Research and assistance by Rick Bernardi, J.D.

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This article, Jerry Brown Doubles Down, was originally publiched on Bicycling on October 23, 2012,

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Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.
After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske’s practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).
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