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Update on disappearing bike lane case: Judge, victim, lawyer respond

Posted by on January 7th, 2010 at 12:21 pm

No paint, no (legal) protection?
(Photo © J. Maus)

When bike lane striping disappears through an intersection, does the legal standing of a person operating a bicycle in that lane also vanish?

Last month, Multnomah County traffic court judge Michael Zusman ruled that it does and the decision has left many people confused and concerned. We checked in with Zusman, the woman who was hit (City of Portland employee Carmen Piekarski), and a bike law expert to get an update.

“In general, my authority as a judge is limited: I am bound to interpret the law the way it is written, not as I (or others) might wish it to be.”
— Michael Zusman, Mult. County Circuit Judge Pro Tem

Ms. Piekarski said her shoulder still doesn’t work quite right (saying “it still doesn’t move certain directions without pain and cracking”), but she has no plans for a civil lawsuit. Piekarski has talked with a lawyer about her case, but the conversation is focused on insurance law. About the decision to not bring a lawsuit against the driver of the Prius that hit her, Piekarski says, “I don’t want my energy wound up in this for years. I just want to get out of this what I’ve had to put into it.”

Piekarski has also written an email to her state representative in Salem, Ben Cannon (who happens to be a regular bike rider himself). “I sent him the link to your story and asked, ‘what can we do about this?'”

Story continues below

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With a civil suit off the table, some have wondered whether a change is needed to the Oregon state law to clarify the situation.

“We disagree [with the judge] in several respects…If traffic lanes all ceased to exist in intersections, legal chaos would ensue and every intersection without lines painted for every lane would turn into a legal free-for-all.”
— Ray Thomas, lawyer and bike law expert

Bike law expert Ray Thomas thinks the law is fine the way it is. He’s written an article about the case he hopes will clarify the situation titled, Bike Lane Right of Way Continues Even Without Painted Line Through Intersection (40kb PDF here).

In the article, Thomas writes that he disagrees with Zusman’s decision and acknowledges the “great consternation” it has caused, but reminds us that, “…the decision does not create binding legal precedent.”

But even so, Thomas wants people to know that according to official legal and road design references in Oregon, a person on a bike does not lose the right of way in a bicycle lane when the striping drops through an intersection.

Here’s Thomas’ thinking:

“Bicycle lane” is defined in ORS 801.155 as ‘that part of the highway, adjacent to the roadway, designated by official signs or markings for use by persons riding bicycles…’

The court ruling fails to recognize that the legal existence of a bicycle lane does not end just because the paint on the road stops at an intersection…

Bicycle lane designation by markings or signs creates a legal status for bicyclists that does not require the presence of paint on the pavement in the intersection because lanes (even motor vehicle lanes) continue even when the paint stops. It is the markings or designations visible before and after the intersection that create the legal presence of the bicycle lane…

If traffic lanes all ceased to exist in intersections, legal chaos would ensue and every intersection without lines painted for every lane would turn into a legal free-for-all.”

Thomas also consulted the Oregon Department of Transportation’s Oregon Bicycle and Pedestrian Plan (which was updated in 2007):

“The rules for design and installation of bicycle lanes in the Oregon Bicycle and Pedestrian Plan suggest that the painted stripe should usually stop at the crosswalk and resume on the other side of the intersection. Interruption of the paint stripe does not interrupt the bicycle lane…”

Based on these findings, Thomas feels that no legislative fix is necessary “because the law is clear.”

Judge Michael Zusman disagrees. In an email response to our request for a phone interview, he wrote that his authority as a judge is limited and that he’s “bound to interpret the law the way it is written, not as I (or others) might wish it to be.” Going further, he wrote, “If the “spirit of the law” is at odds with the plain language of a statute, it is within the exclusive province of the Legislature to fix the problem.”

As for Piekarski, she’s just hoping she can recoup some of her expenses from the insurance company of the woman who turned into her. She’s also counting her blessings that the collision didn’t end up a lot worse. “Ultimately, I’m an extremely lucky person.”

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wsbob
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wsbob

“…Bicycle lane designation by markings or signs creates a legal status for bicyclists that does not require the presence of paint on the pavement in the intersection because lanes (even motor vehicle lanes) continue even when the paint stops. It is the markings or designations visible before and after the intersection that create the legal presence of the bicycle lane…” …” Ray Thomas

Thomas also consulted the Oregon Department of Transportation’s Oregon Bicycle and Pedestrian Plan (which was updated in 2007):

“The rules for design and installation of bicycle lanes in the Oregon Bicycle and Pedestrian Plan suggest that the painted stripe should usually stop at the crosswalk and resume on the other side of the intersection. Interruption of the paint stripe does not interrupt the bicycle lane…” ODOT/Oregon Bike and Pedstrian Plan

Good work Thomas. Question: In the bikeportland interview with Judge Zusman, was he presented, by the interviewer, with the excerpt from the ODOT/Oregon Bike and Pedstrian Plan, before he made his comments published above?

Jackattak
Guest
Jackattak

Wow. How am I not surprised by Zusman’s response (or lack thereof…a true one, anyway).

It’s cool, “judge” Zusman. I still haven’t eaten at Kenny & Zuke’s since the original article and have personally deflected five of my friends from eating there just last week.

Nothing like voting with your wallet!

Paul Souders
Guest

Judge Michael Zusman disagrees. In an email response to our request for a phone interview, he wrote that his authority as a judge is limited and that he’s “bound to interpret the law the way it is written, not as I (or others) might wish it to be.” Going further, he wrote, “If the “spirit of the law” is at odds with the plain language of a statute, it is within the exclusive province of the Legislature to fix the problem.”

There’s also a (potentially easier?) non-legislative fix: paint bike lanes through every intersection. Personally I kinda love that idea, because it’s so stupid. We could call them “Zusman Stripes” or something. Y’know, to underline the stupidity.

Joe Metal Cowboy Kurmaskie
Guest

Zusman stripes! Classic.

Jonathan Maus (Editor-in-Chief)
Guest

wsbob,

I contacted Zusman and asked for a time when we could talk about this case on the phone.

He then replied via email with a general statement prefaced by this:

” It would be inappropriate for me to comment on the facts or decision in this or any other specific case. I am providing below a brief general statement which you may use in connection with your reporting on this matter. I’m sorry if it does not answer all your questions.”

BURR
Guest
BURR

Zusman is an idiot and should not be on the bench

Steve Brown
Guest

Zusman makes no sense at all. Does he also deny the existence of radio waves because he cannot see or feel them. Try telling a Portland Policeman that you changed lanes in an intersection driving your car because the lines do not exist. I always thought one of the roles of a judge was to preside over justice. Maybe that is another invisible concept.

Donna
Guest
Donna

So Judge Zusman would also rule that anyone driving a car who makes a left hand turn from a right lane is not breaking any law? After all, there are no lane markings whatsoever in any intersection.

No one has to follow any rules or laws in the intersection because lanes don’t continue through them. Fun for everyone!

t.a. barnhart
Guest

when i got hit by a car, it was in the middle of the intersection (going south on SE 7th, thru Morrison). fortunately the cop cited the driver for making a dangerous left turn: nothing to do with bike lanes or stripes. clearly a lot of education needs to happen, both for cops to cite a driver properly, and for judges to understand “the letter of the law” is not always what the law actually says. strict adherence to the letter is not a fundamental of American jurisprudence, otherwise we could use computers instead of judges… hmmmm…..

are
Guest

i honestly do not understand why people have a difficult time seeing that judge zusman’s ruling was technically correct. we are talking about whether to fine someone for breaking a law. the law has to be clear. the law is not clear. yes, the motorist did something stupid, and yes, she broke two other laws — failing to signal and failing to keep a proper lookout — but she was not charged with these. who fell down here was the prosecutor.

obviously the statute has to be changed (that is, assuming you want to maintain separate sidepaths to the right of right turning traffic), because in its current form it can be (and in its literal sense, should be) read the way judge zusman read it. language in some ODoT plan does not cut it.

evidently what the facilities people want is a statute that says a motorist should yield to a cyclist on her right, period. it should not be difficult to write that in a way that a traffic judge will always read the same way you do.

i will continue to take the lane.

Oh Word?
Guest
Oh Word?

Zusman Stripes- classic! Next time a guerilla crosswalk is painted it shall be called a Zusman Crosswalk!

Big Kahuna
Guest
Big Kahuna

Perhaps some of these questions can be directed at Zusman himself (in a civil manner, of course). I’m sure it won’t accomplish much for this ruling, but perhaps the good judge will become a little more enlightened.

Phone 503 988-5474
Fax 503 988-3425
Email michael.c.zusman@ojd.state.or.us

N.I.K.
Guest
N.I.K.

Zusman’s differentiating between the written language of the law and the so-called “spirit of the law” is a hair’s-width from admitting, “Yes, the written language of the law is muddled and requires interpretation” – *not* because the law as written doesn’t yield any particular interpretation (as might be wanted by a given bias), but instead because there’s an inherent lack of clarity that suggests that law might be meant to work in some way that isn’t clear, period. Saying that it’s not his place to interpret the law, then, is no more than double-talk. He *did* interpret the law here, and because he had to; he’s just trying to cover the bases because it’s turning out to be an unpopular decision.

Rich, Your Neighbor
Guest
Rich, Your Neighbor
rixtir
Guest
rixtir

Zusman is also bound to interpret the law correctly. He didn’t do that. He simply doesn’t know what he’s talking about when it comes to this issue.

hairjordan
Guest
hairjordan

If there is no turn arrow painted in the middle of an intersection, does the driver lose their right to turn?

Jackattak
Guest
Jackattak

Rich # 14 –

Done and done!!

rixtir
Guest
rixtir

ARE, #10,

Zusman’s ruling is actually technically wrong on the law; his careless legal analysis led to the wrong result. If the Legislature needs to clarify the law, it is only to prevent Zusman (and perhaps others) from continuing to misinterpret the law.

John Lascurettes
Guest

Dead on N.I.K. Thank you for putting it into the exact words that I could not figure out how to express:

Zusman’s differentiating between the written language of the law and the so-called “spirit of the law” [and s]aying that it’s not his place to interpret the law, then, is no more than double-talk. He *did* interpret the law here, and because he had to; he’s just trying to cover the bases because it’s turning out to be an unpopular decision.

yarrrum
Guest
yarrrum

I will SO start eating at K & Z as a response to the idiots who won’t eat there. I had never heard of it, but the food sounds so great.

are
Guest

rixtir 18, it is often the case that the legislature needs to clarify something that a judge might “misinterpret.” usually best to do it the first time around. however, in interpreting a penal statute the judge has to resolve ambiguities in favor of the defendant.

we need to be careful what we ask for here, incidentally, as we may be digging ourselves deeper and deeper into the right edge of the roadway.

Jackattak
Guest
Jackattak

yarrum # 20

Suit yourself, but Kornblatt’s is much, much better (NW 23rd).

Believe me.

Not quite sure why we’re idiots, though. Voting with your wallet has always been an effective means for showing your distaste.

It’s also why I will no longer buy anything from Columbia Sportswear (for their efforts to can Mayor Adams).

rixtir
Guest
rixtir

It doesn’t need to be “clarified” if the Judge does a proper BOLI analysis.

Or he can do a half-“baked” job and get it all wrong.

I say it’s HIS job to do the analysis right.

N.I.K.
Guest
N.I.K.

we need to be careful what we ask for here, incidentally, as we may be digging ourselves deeper and deeper into the right edge of the roadway.

Because of what, exactly – the vindictiveness of some conspiratorial anti-bike body in control of the legislature? Short of poo-flinging weekend rabble-rouser theatrics, the riskiest thing here would be to avoid addressing the issue entirely, encouraging similar rulings relative to the law in question as well as muddled phrasing on behalf of the legislature which permits similar selective interpretation.

Brad
Guest
Brad

But the REAL issue here was that the police officer and prosecutor brought the wrong charge. This was covered in the article several weeks ago.

But since Zusman failed to go all Judge Roy Bean and ordered the death penalty for attempted murder of a cyclist, the rebels without a clue that comprise the most vocal element of our little cadre of pedalistas are outraged. Not enough to write their legislators demanding better laws and not nearly enough to demand the PPB and MultCo. DA review their procedures. Nope, in true 21st Century style they are attempting to cripple the cash flows of a mediocre delicatessen via social networking applications!

That’ll show THE MAN!!!

RWL1776
Guest
RWL1776

Sounds like this Judge would be a perfect fit for the 9th ‘Circus’ Court of Appeals!

are
Guest

NIK 24, i agree the issue needs to be addressed, both by clarifying (simplifying) the statute to say simply yield to a bicyclist on your right, but also by repealing the far to right and mandatory sidepath laws. you don’t need conspiratorial anti-bike people in the legislature when you already have “pro-” bike people striping everything and then requiring you to ride within the stripes.

RWL1776
Guest
RWL1776

Jackattak #2: Is this Judge really the owner of Kenny n’ Zukes? Please clarify, I’d hate to find out the wrong Mike Zusman is being villified. Just wondering…….

RWL1776
Guest
RWL1776

from:
http://wweek.com/editorial/3413/10333/

So when chef Ken Gordon of Ken’s Place and local food blogger Nick Zukin (Extramsg.com) announced last spring they’d debut a full-service Jewish deli adjacent to Portland’s newly minted Ace Hotel, Kenny&Zuke’s Delicatessen became the most anticipated restaurant in years. It was downtown PDX’s first truly egalitarian new restaurant in decades when it opened last October, and it delivered better pastrami than we Portlanders have ever had to call our own.

Jackattak
Guest
Jackattak

27 & 28 – RWL1776

Yes it was established in the original thread on this issue:

http://bikeportland.org/2009/12/18/judge-woman-hit-in-unpainted-bike-lane-is-not-protected-by-law/

There are links to all of that in the thread, notably #’s 50 and 138.

He’s not owner. He’s the co-owner. He also does reviews for the place and is a real piece of work.

N.I.K.
Guest
N.I.K.

are, agreed completely. The far right and mandatory side path laws are indeed problems, though I’d hold them up as examples of instances where selective enforcement and interpretation were written in as mechanisms for dealing with conflict and have largely failed to work as intended – in other words, real-live examples of the “spirit of the law” failing. This particular case is different in that the language of the law is needlessly complex and vague.

But yeah. I like taking the lane quite often, too. 🙂

cold worker
Guest
cold worker

so is there anything in a jewish deli that doesn’t contain animal products? reading that wweek article everything was “the guts of this animal…” and “the fat of that animal…”

rex
Guest
rex

How about this for a clarification to the law: If you are driving a car, and you hit a human being and you did not everything possible to avoid doing that, you screwed up on some level…

It sounds radical, but it is the same standard we hold gun users too.

Oliver
Guest
Oliver

Does anyone have any personal experience of any other judge throwing out an arresting officer’s citation when no one was disputing it?

are
Guest

and if you are charged under 814.420 or 814.430, should the ambiguity be construed in your favor or against you?

Big Kahuna
Guest
Big Kahuna

Perhaps we can organize a fundraiser to lobby the City of Portland (or whoever the AHJ is) to paint bike lanes through intersections so that cyclists will still technically be in the bike lane. Maybe the Honorable Judge can be the MC of the event. Anyone care to draft an RSVP to send over to his office?

AdamG
Guest
AdamG

If invisible bike lanes exist in intersections, can the bike lane in the photo above be terminated so that a cyclist can move left and avoid the door zone ahead? Many painted bike lanes do extend through intersections, many do not, and many (like the one in the photo above) should end before the intersection to prevent cyclists from having to merge left while in an intersection when they should really be paying attention to whats going on in front of them. If I ever get a ticket for leaving an invisible bike lane, I’m going to be pretty unhappy.

Alan
Guest
Alan

Steve Brown says in response #7 Try telling a Portland Policeman that you changed lanes in an intersection driving your car because the lines do not exist.

Why would that be a problem? Can you cite which law says cars (or bikes) can’t change lanes in an intersection? I don’t think Oregon law forbids that. I still think Zusman’s decision is inane and Ray Thomas’ “Bike Lane Right of Way…” brief is the correct analysis of the law.

Joe Rowe
Guest
Joe Rowe

Zusman stripes need to be painted on 5th and 6th downtown. Cars are always in bus and max lanes. Why? Because the intersection does not have stripes, the car drivers reason just like Zusman, that the bus lanes “don’t exist”.

Pat Franz
Guest

I think Zusman’s reply sidesteps the issue. Yes, he’s obligated to interpret laws as written, and not write them. But the example he uses as the basis of his ruling is inappropriate, and he is ignoring several other clearly more applicable examples he could have used if he wanted.

It’s not as if the law as written forced his hand. He picked an inappropriate bit of law when other bits would clearly be better.

Question is, why?

cold worker
Guest
cold worker

Alan @ 38. When i took driver’s ed. in high school, in washington, one of the rules of the road i learned was that you aren’t allowed to lane change going through an intersection. I don’t have or know the state legal codes for oregon or washington. so i guess maybe it isn’t a law, just a safety issue, but i have always assumed it’s a law. i don’t know…

Charles
Guest
Charles

If people are not having any luck contacting Zusman at work, perhaps try this email: mczlaw@pacifier.com (I found this on an internet search, so it’s out in the public domain already)

wsbob
Guest
wsbob

Correction, my comment #1: second paragraph in quotes…I assumed was from the ODOT/Oregon Bike and Pedstrian Plan. Looking at Thomas’s article later today, the language looks to be his instead.

Following, is the excerpt from ODOT/Oregon Bike and Pedstrian Plan which Thomas refers to and includes in his article:

“Intersections.
Bike lanes should be striped to a marked crosswalk or a point where
turning vehicles would normally cross them. Marking the bike lane with
eight-inch wide dotted lines prior to the intersection indicates a potential
conflict area to drivers and bicyclists, as some drivers pull over to the right
to make a right turn. The bike lane should resume at the other side of the
intersection. Bike lanes are not normally striped through intersections;
however, it may be appropriate to do so where extra guidance is needed;
in this case they may be marked with eight-inch wide dotted lines, to guide bicyclists to a long undefined area. (Emphasis added).
(Chapter 1, page 17 of 2007 Draft; Page 146 of Plan)”

Maus…saw your response in comment #5…so apparently, Judge Zusman declines to give an in person interview on any level with anyone from bikeportland about this subject. Says…”It would be inappropriate for me to comment on the facts or decision in this or any other specific case.” I wish he’d have explained why for some of us out here that maybe don’t something he apparently assumes we should.

That’s too bad, because I would really like to know whether the judge read the excerpt from the ODOT/Oregon Bike and Pedstrian Plan in preparation for making his ruling. He obviously had done some research for his ruling because in his paper explaining it, he cited several statutes where lines on the roadway were relied on to help determine whether or violations occurred.

In his paper, Zusman explains that resolving the question of whether a violation in this situation occurred was a matter of ‘statutory construction’. Preparing to make his decision on that means, since ODOT/Oregon Bike and Pedstrian Plan material isn’t a statute, he likely would have decided it “…does not assist the court in determining the depostitive issue in this case,namely, whether the bicyclist was riding her bicycle “upon a bike lane” when the crash occurred…”

‘statutory construction’. I’ll bet there’s more people than myself that may not understand what that means. I looked it up. Here you go if you want to read on it:

Statutory Construction/Interpretation

I’ve gotten way too long here, so I’ll just say that in that interpretation there is the following: STATUTORY CONSTRUCTION -LEGISLATIVE INTENT. I’m fairly certain what that refers to what the legislators had in mind when they passed the law. I wonder if Judge Zusman considered this in making his ruling.

jim
Guest
jim

Bike lanes do not carry through intersections for one reason, It is a dangerous place for them. have you ever noticed that sometimes the bikelane striping disapears in areas where it is not safe? Putting a bike lane in an intersection would only promote foolhardy actions that would ultimately result in more accidents.

Donna
Guest
Donna

Jim – traffic lanes that aren’t bike-specific disappear in certain places, too. See comment #39 for more info.

Marcus Griffith
Guest
Marcus Griffith

Zusman has just made it clear why he is pro tem judge. Zusman ignores the letter of the law and the standing historical recognition that all lanes exists through an intersection, even if the paint stops for a few feet. Zusman also disregars a judge’s obligation to clarify legislator intent and avoid creating absurdities. Perhaps Zusman is just unable to grasp the concepts of his position or simply carrying out his own personal agenda.

The law is clear that vehicle lanes, be it bike lanes or motor vehicle lanes exist through an intersection.

Steve Brown
Guest

Response to Alan, see P 38 in the Oregon Drivers Manual. Zusman’s opinion rests on the assumption of no stripes no bike lane. The only fact he got right is no stripes in the intersection. A licensed driver in the State of Oregon is obliged to maintain lane presence in an intersection, per page 38. Zusman need to go no further. If he holds a valid Oregon Drivers license he should know this. The Kenny & Zukes connection is interesting. But what I want to know is this any relation to the owner of Willamette Week? If so, why has the Judge not been listed as “Rogue of the Week”. Good sandwiches or not, this could be the story.

jboyd
Guest
jboyd

By this judges reasoning, drivers need only obey the speed limit as they pass a speed limit sign. This judge has *not* followed the plain language of the statute, but dissected it to suit his own personal agenda.

dan
Guest
dan

To those who are boycotting Kenny and Zuke’s as a result of this ruling: Zusman is an investor in the restaurant, but I don’t know how big his stake is, and I’ve never heard that he’s the majority owner.

Ken and Nick themselves are good guys, and shouldn’t be penalized for one investor’s poor judgment, nor should the restaurant staff.

And I didn’t know that Columbia supported the Sam Adams recall — off to their downtown store to buy a new snowboard outfit!

anonymous
Guest
anonymous

Once again I think a dangerous point is being missed, and so far I’ve only seen one post that even hints at it:

If we are in danger of being relegated further to the right side of the road, then the real issue is a difference of opinion between bike riders who prefer riding there and those who prefer taking the lane.

This, in turn, leads into the sticky morass of ongoing (and, imo, misguided) efforts to make cars and bikes share the same roads, which I still maintain cannot ever possibly be achieved safely and fully. Asking 10mph vehicles whose operators have virtually no protection to share the roads with 50mph vehicles whose operators are encased in a sheath of metal is patently unfair and tragically ridiculous.

Bike riders need separate paths designed to get them to the places they want to go. Numerous studies indicate that MOST bike riders want separate facilities for bikes so they will feel safer when riding. (People willing and happy to take the lane are still in the minority!)

It’s time to stop picking at little non-issues and tiptoeing politely and politically, and start tearing down the system that forces these imbalances.
No bike licensure! No bike insurance! No aping the car culture!