| |
CONCLUSION
"We hold that I-776 embraced a single subject and
expressed that subject in
its title, that I-776 did not 'substantially impair' King County's
contractual obligations to its bondholders, and that the additional
constitutional claims that the superior court did not reach were
unavailing. We therefore reverse the trial court's grant of
summary
judgment and remand the matter for proceedings not inconsistent with
this opinion. Salish's request for attorney fees at trial and on
appeal is
denied."
Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 73607-3
Title of Case: Pierce County et al V State of Washington et al
File Date: 10/30/2003
Oral Argument Date: 06/26/2003
SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 02-2-35125-5
Judgment or order under review
Date filed: 02/10/2003
JUSTICES
--------
Authored by Susan Owens
Concurring: Barbara A. Madsen
Charles W. Johnson
Gerry L Alexander
Richard B. Sanders
Mary Fairhurst
Dissenting: Faith Ireland
Bobbe J Bridge
Tom Chambers
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Jerald R. Anderson
Attorney at Law
Atty General S Ofc
PO Box 40110
Olympia, WA 98504-0110
Linda Marie Moran
Assistant Attorney General
1125 Washington St SE
PO Box 40110
Olympia, WA 98504-0110
James Kendrick Pharris
Attorney at Law
Ofc of Atty General
PO Box 40100
Olympia, WA 98504-0100
James J Klauser
Rowley & Klauser LLP
Seattle Business Center
557 Roy St Ste 160
Seattle, WA 98109-4259
Robert Clayton Rowley
Rowley & Kauser LLP
557 Roy St Ste 160
Seattle, WA 98109-4259
Counsel for Defendant(s)
Mark Douglas Kimball
Skyline Tower
10900 NE 4th St Ste 950
Bellevue, WA 98004-5888
Counsel for Respondent(s)
Thomas Fitzgerald Ahearne
Attorney at Law
1111 3rd Ave Ste 3400
Seattle, WA 98101-3264
Alice M Ostdiek
Attorney at Law
1111 3rd Ave Ste 3400
Seattle, WA 98101-3264
Hugh Davidson Spitzer
Foster Pepper & Shefelman PLLC
1111 3rd Ave Ste 3400
Seattle, WA 98101-3299
Thomas William Kuffel
Attorney at Law
E550 King County Courthouse
516 3rd Ave
Seattle, WA 98104-2385
Noel Reynolds Treat
King Co Courthouse
516 3rd Ave Rm E550
Seattle, WA 98104-2385
Desmond Leoron Brown
Sound Transit Union Station
401 S Jackson St
Seattle, WA 98104-2826
Paul J. Lawrence
Attorney at Law
925 4th Ave Ste 2900
Seattle, WA 98104-1158
Clifford Freed
Frank Freed Subit & Thomas LLP
705 2nd Ave Ste 1201
Seattle, WA 98104-1741
PIERCE COUNTY, a local government in the )
State of Washington; GLORIA IRENE THEIN, )
a Pierce County resident, voter, taxpayer, vehicl)
owner, vehicle driver, and public transportation )
user; CITY OF TACOMA, a local government in )
the State of Washington; WILLIAM LaBORDE, a )
Tacoma resident, taxpayer, vehicle owner, vehicle)
driver, and public transportation user; KING )
COUNTY, a local government in the State of )
Washington; KAREN UFFELMAN, a King )
County resident, voter, taxpayer, vehicle owner, )
vehicle driver, and public transportation user, )
)
Respondents, ) No. 73607-3
and )
) En Banc
CENTRAL PUGET SOUND REGIONAL )
TRANSIT AUTHORITY, commonly known as )
'SOUND TRANSIT', a Washington regional )
transit authority; THE SIERRA CLUB, a non- )
profit public benefit corporation; 1000 FRIENDS )
OF WASHINGTON, a Washington non-profit )
corporation; KING COUNTY LABOR )
COUNCIL, a Washington non-profit corporation; )
WASHINGTON STATE LABOR COUNCIL, a )
Washington non-profit organization; CITY OF )
KENMORE, a Washington municipal corporation; )
TRANSPORTATION CHOICES COALITION, )
a Washington non-profit benefit corporation; )
AMALGAMATED TRANSIT UNION LOCAL )
587, a labor organization; and AEROSPACE )
MACHINIST UNION, a labor organization, )
)
Intervenor-Respondents, )
)
v. ) Filed October 30, 2003
)
STATE OF WASHINGTON, in its general )
capacity as defender of I-776, and through its )
agency the Washington Department of )
Licensing, )
)
Appellant, )
and )
)
SALISH VILLAGE HOME OWNERS )
ASSOCIATION, a Washington non-profit )
association; and G. DENNIS VAUGHN, a )
citizen and taxpayer resident of King County, )
)
Intervenor-Appellants, )
and )
)
PERMANENT OFFENSE, a non-profit )
organization ex rel. Initiative 776, )
)
Intervenor-Defendant. )
)
OWENS, J. -- In November 2002, voters passed another $30 license tab
initiative, Initiative Measure 776 (I-776).1 In February 2003, the King
County Superior Court declared I-776 unconstitutional on the grounds that
it embraced more than a single subject and substantially impaired King
County's contractual obligations to its bondholders. This court accepted
direct review. Because we conclude that
I-776 did not violate the Washington State Constitution, we reverse the
superior court's grant of summary judgment and remand for proceedings
consistent with this decision.
FACTS
I-776 was filed with the secretary of state on January 7, 2002, as an
initiative to the people. Const. art. II, sec. 1(a). The sponsors
entitled the initiative 'AN ACT Relating to limiting government-imposed
charges on motor vehicles.' Clerk's Papers (CP) at 19. Pursuant to RCW
29.79.035(1) and (2) and 29.79.040, the attorney general's office prepared
a ballot measure summary and the following ballot title for the initiative:
Initiative Measure No. 776 concerns state and local government charges on
motor vehicles. This measure would require license tab fees to be $30 per
year for motor vehicles, including light trucks. Certain local-option
vehicle excise taxes and fees used for roads and transit would be repealed.
Should this measure be enacted into law?
Yes { } No { }
CP at 18. On November 5, 2002, the voters approved the ballot measure by a
majority vote. The measure was to take effect on December 5, 2002, 30 days
after the election, as provided in article II, section 1(d) of the state
constitution.
On November 27, 2002, Pierce County, the City of Tacoma, two Pierce County
residents, and one King County resident filed a complaint in King County,2
seeking declaratory and injunctive relief on the grounds that I-776 was
unconstitutional. On December 2, 2002, King County joined the suit by
amended complaint. Two days later, King County Superior Court Judge Mary
Yu granted Pierce County's motion for a preliminary injunction, enjoining
implementation of I-776 in King and Pierce Counties prior to a hearing on
the merits. A summary judgment hearing on cross-motions for summary
judgment was set for January 31, 2003.
On December 16, 2002, the superior court permitted intervention on Pierce
County's side by the Central Puget Sound Regional Transit Authority (Sound
Transit) and eight other parties. Four days later, G. Dennis Vaughn and
Salish Village Condominium Association (Salish) moved to intervene and
filed a complaint seeking a declaration that I-776 was constitutional and
that Sound Transit was not a constitutionally formed entity. The superior
court granted the motion to intervene on December 27 but restricted
Salish's claims to the constitutionality of I-776. On January 23, 2003,
the court granted Permanent Offense's January 14 motion to intervene as a
defendant.
Oral argument on cross-motions for summary judgment was heard on
January 31, 2003. On February 10, the superior court filed a memorandum
decision and order, granting judgment in favor of Pierce County. The court
concluded that Pierce County was entitled to summary judgment on two
alternative grounds: (1) that I-776 violated article II, section 19 of the
state constitution (the single-subject and subject-in-title requirement);
and (2) that I-776 violated article I, section 23 of the state constitution
because I-776's repeal of a $15 motor vehicle fee impaired King County's
obligations to its bondholders.
The State and Salish sought direct review, which this court granted on an
accelerated basis.
ISSUES
(1) (Raised by the State and Salish) Did the superior court properly
conclude that I-776 violated article II, section 19 of the state
constitution, which provides that '{n}o bill shall embrace more than one
subject, and that shall be expressed in the title'?
(a) Did precatory language in I-776 (specifically, policy expressions
regarding transit agencies that have levied motor vehicle excise taxes)
introduce a second 'subject,' as that term is used in article II, section
19?
(b) If I-776 embraced but a single subject, did the ballot title express
that subject?
(2) (Raised by the State and Salish) Did the superior court correctly
determine that I-776 violated article I, section 23 of the state
constitution, which provides that '{n}o . . . law impairing the obligations
of contracts shall ever be passed'?
(3) (Raised by Pierce County) Did I-776 violate constitutional precepts
of local home rule set forth in article XI, sections 4 and 12 of the state
constitution?
(4) (Raised by Sound Transit) In repealing the MVET, did I-776 exceed the
scope of the initiative power prescribed in article II, section 1 of the
state constitution or violate Sound Transit's due process rights,
guaranteed in article I, section 3?
(6) (Raised by Salish) Is Salish entitled to attorney fees?
ANALYSIS
Standard of Review. The State and Salish seek reversal of the superior
court's grant of summary judgment in favor of Pierce County. This court's
review is de novo. Wash. Fed'n of State Employees v. State, 127 Wn.2d 544,
551, 901 P.2d 1028 (1995). Summary judgment is properly granted where
'there is no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law.' CR 56(c). As with
the interpretation of a statute, the interpretation of an initiative is a
question of law, subject to de novo review. See Amalgamated Transit Union
Local 587 v. State, 142 Wn.2d 183, 204-06, 11 P.3d 762, 27 P.3d 608 (2000);
Wash. Fed'n, 127 Wn.2d at 556 (noting that the people's approval of an
initiative is equivalent to the legislature's enactment of a statute).
I-776's Satisfaction of Single-Subject and Subject-in-Title Requirements.
Article II, section 19 of the state constitution requires that '{n}o bill
shall embrace more than one subject, and that shall be expressed in the
title.' The oft-acknowledged purpose of the first clause, the single-
subject provision, is to prevent '{l}ogrolling or hodgepodge legislation,'
the tactic of attaching an unpopular bill to a popular one on an unrelated
subject. Wash. Fed'n, 127 Wn.2d at 554; Amalgamated, 142 Wn.2d at 207; see
Webster's Third New International Dictionary of the English Language 1331
(1993) (defining 'logrolling' as 'the trading of votes by legislators to
secure favorable action on projects of interest to each one'). In Power,
Inc. v. Huntley, 39 Wn.2d 191, 235 P.2d 173 (1951), this court identified
'the clearest possible illustration of the kind of 'logrolling,' the 'you-
scratch-my-back-and-I'll-scratch-yours' situation that the constitutional
provision was designed to prevent'; in that case, 'neither the
appropriation bill, . . . nor the corporation income tax bill, . . .
standing on its own merits, could pass the legislature in the special
session, but when the proponents of these measures combined their
interests, both were enacted.' Id. at 198-99. As to the second clause in
article II, section 19, the subject-in-title requirement, the purpose is
'to notify members of the Legislature and the public of the subject matter
of the measure.' Amalgamated, 142 Wn.2d at 207.
The two article II, section 19 requirements apply with equal force to
enactments of the legislature and to initiatives, for '{i}n approving an
initiative
measure, the people of Washington wield direct legislative power.' In re
Estate of Thompson, 103 Wn.2d 292, 294, 692 P.2d 807 (1984); see Const.
art. II, sec. 1(a). A statute or initiative measure is presumptively
constitutional; consequently, a party asserting that either violates the
state constitution 'bears the heavy burden of establishing its
unconstitutionality beyond a reasonable doubt.' Amalgamated, 142 Wn.2d at
205. A court interpreting an initiative measure must ascertain the voters'
intent in approving the measure. Id. Where the language of the initiative
is clear and unambiguous, a court may not look beyond the text of the
measure; however, if the initiative is susceptible to more than one
reasonable interpretation, a court may determine the voters' intent by
applying canons of statutory construction or by 'examin{ing} the statements
in the voters pamphlet.' Id. at 205-06.
a. The Single Subject of I-776
The first step in the article II, section 19 analysis is to determine
whether Pierce County has shown beyond a reasonable doubt that I-776
violates the single-subject requirement. An initiative embraces a single
subject if its parts are rationally related to one another. Kueckelhan v.
Fed. Old Line Ins. Co., 69 Wn.2d 392, 404, 418 P.2d 443 (1966) (holding
that '{t}he relationship between fire insurance regulation and rating, fire
loss, fire prevention, and fire investigation is rational and reasonable');
Fritz v. Gorton, 83 Wn.2d 275, 290, 517 P.2d 911 (concluding that a half
dozen subtopics, ranging from regulation of lobbyists to inspection of
public records, were 'reasonably related,' thus satisfying 'the nexus
requirements of the 'rational unity'
test'), appeal dismissed, 417 U.S. 902, 94 S. Ct. 2596, 41 L. Ed. 2d 308
(1974); Citizens for Responsible Wildlife Mgmt. v. State, 149 Wn.2d 622,
639, 71 P.3d 644 (2003) (determining that a ban on trapping animals with
certain body-gripping traps was rationally related or 'germane to' a ban on
killing animals with certain pesticides).3
The State maintains that the sole subject of I-776 is the placement of a
$30 ceiling on state and local government fees that citizens must pay to
license their cars and light trucks. The State asserts that the 11
sections of I-776 are rationally related to that subject:
Section 1: 'Policies and Purposes'
Section 2: 'Requiring License Tab Fees to Not Exceed $30 Per Year for
Motor Vehicles' (pertaining to cars, sport utility vehicles, motorcycles,
and motor homes)
Section 3: 'Requiring License Tab Fees to Not Exceed $30 Per Year for
Light Trucks . . .' (amending fee schedule set forth in RCW 46.16.070)
{Sections 4-5: Actions of the 2002 legislature made these sections,
pertaining to RCW 35.58.273, unnecessary.}
Section 6: 'Repealing the Local Motor Vehicle Excise Tax {MVET}'
(repealing authority of certain transit agencies to impose MVET under RCW
81.104.160, the statute under which Sound Transit levied MVET and thereby
increased car tab fees)
Section 7: 'Legislative Intent Relating to Outstanding Bonds'
Section 8: 'Repealing the Local Option Vehicle License Fee' (repealing
local option vehicle license fee previously authorized by RCW 82.80.020,
under which Pierce and King Counties levied vehicle license fees)
Section 9: 'Construction Clause' (mandating liberal construction of act)
Section 10: 'Severability Clause'
Section 11: 'Legislative Intent'
CP at 370-73.
The superior court found that sections 2, 3, 4, 6, and 8 were 'the
operative and relevant sections' and that all were 'germane to the single
general subject of . . . limiting the amount of state and local government
charges that motor vehicle owners must pay upon the registration or renewed
registration of a vehicle.' CP at 1728-29 (emphasis added). The superior
court then considered whether sections 1 and 7 were 'precatory or mandatory-
-that is whether they {were} policy expressions of no consequence or
legally enforceable obligations.'4 Agreeing with the State and Sound
Transit that sections 1 and 7 were 'pure policy expressions,' CP at 1733,
the superior court acknowledged that this court 'has not addressed the
question of whether a precatory provision within an initiative can
introduce a second subject.' CP at 1734.
The superior court implicitly answered that legal question in the
affirmative and went on to conclude that one sentence in section 1 (the 8th
of its 11 sentences)5 and all three sentences in section 7 (see Appendix B
attached) 'introduce a separate subject into the body of the Initiative,'
violating the single-subject rule. CP at 1735. The court observed that
the eighth sentence in section 1 'calls for the re-submission of changes to
transportation plans and programs to the voters,'6 but the court
acknowledged that, while the four sentences express the people's wish for
'{a} re-vote on existing transit projects or a re-vote on future funding
for transit,' CP at 1736, section 1 refers to no statute or mechanism for
putting such a wish into action, nor does anything in sections 1 or 7
legally bind Sound Transit 'to repay bonds early or to conduct a revote on
light rail.' CP at 1733. In fact, as the superior court noted, the
State and Salish agreed at oral argument that Sound Transit was entitled to
a declaratory judgment order 'stating that I-776 creates no legally binding
obligations on Sound Transit to repay bonds early or conduct a re-vote on
light rail.' CP at 1731.
On this issue of first impression, we reject the superior court's implicit
conclusion and hold instead that policy expressions in a bill or initiative
measure do not contribute additional 'subjects' within the meaning of
article II, section 19.7 Permitting pure policy statements to yield
additional 'subjects' for article II, section 19 analysis is contrary to
the constitutional provision's long-acknowledged purpose of prohibiting
logrolling, the aggregate passage of two or more unrelated bills in a
single vote or election. The constitutional prohibition against
legislative vote swapping plainly applies to the passage of two or more
'unrelated laws'--not to the passage of one law that contains policy
expressions indisputably devoid of any legal effect. Amalgamated, 142
Wn.2d at 212 (emphasis added). The dissent proclaims that, '{f}or the
exact reasons laid out by this court in Power, Inc.,' article II, section
19 prohibits 'combining a mandatory subject with an unrelated nonmandatory
one.' Dissent at 3. But, as was pointed out above, the court in Power
defined the combination of an 'appropriation bill' and a 'corporation
income tax bill'--two measures with legal effect--as 'the clearest possible
illustration' of what article II, section 19 'was designed to prevent.' 39
Wn.2d at 198-99. The dissent has, in fact, cited no case in which article
II, section 19 has invalidated a piece of legislation on the grounds that
its legally binding provisions were accompanied by policy expressions.
Rather, the dissent demonstrates that Washington law has consistently
viewed the term 'subject' in article II, section 19 as referring to laws,
measures with legal effect. See dissent at 2 (stating that '{o}ur
constitution protects voters 'from having to vote for a law that they do
not favor in order to obtain a law which they do'' (quoting Amalgamated,
142 Wn.2d at 191)); dissent at 2-3 (citing Wash. Toll Bridge Auth. v.
State, 49 Wn.2d 520, 523, 304 P.2d 676 (1956) (invalidating under article
II, section 19 legislation that 'empower{ed} a state agency to establish
and operate all toll roads' and simultaneously 'provide{d} for the
construction of a specific toll road')).
The distinction between a proposed measure's legal substance and its policy
fluff was tersely drawn in an early opinion of this court: 'A law is a
rule of action. An argument is not. . . . {A} preface or preamble stating
the motives and inducement to the making of {the law} . . . . is without
force in a legislative sense . . . . It is no part of the law.' State ex
rel. Berry v. Superior Court for Thurston County, 92 Wash. 16, 30-32, 159
P. 92 (1916). Just as the common inclusion of dicta in judicial opinions
does not compromise the legal effect of a decision,8 policy expressions in
a bill or initiative are 'no part of the law.' Because I-776's 'rule of
action' was $30 license tabs and because its policy statements were 'no
part of the law,'9 I-776 did not
embrace two unrelated laws or enactments. Its 'operative and relevant
sections,' as the superior court termed them, were all rationally related
to the enactment of a $30 ceiling on license tab fees, and that enactment
was not paired with a second bill or measure mandating a revote on light
rail. CP at 1728.
Allowing initiative opponents to extract additional 'subjects' from an
initiative's pure policy expressions--expressions that, by their very
nature, are expansive and rhetorical--would not only be contrary to the aim
of article II, section 19, but would undermine all but the most tightly
worded initiative. Moreover, it would require courts to explain why some
policy expressions are 'subjects' and others are not. To take an extreme
example at hand, the I-776 drafters twice insist in section 1 that
'{p}oliticians should keep their promises,' thus introducing the topic of
politicians' fidelity to their word. CP at 19. While the drafters of the
initiative may well have wished to require politicians to keep their
promises, the initiative provides no statute or mechanism for bringing
about such a utopian notion. In that respect, the precatory language
encouraging politicians to keep their promises is no different from the
urging of a revote on the changes to previously approved transit plans;
both remain items on the drafters' wish list.
Our decision today reaffirms the purpose of the constitutional prohibition
against passing separate laws in a single vote or election and forecloses
the possibility that a bill or initiative could be declared
unconstitutional solely on the grounds that its policy expressions raise
other topics. Having determined that precatory language cannot yield
additional 'subjects' for article II, section 19 purposes, we conclude that
Pierce County has failed to show beyond a reasonable doubt that I-776
required the people to cast a single vote on two unrelated, proposed laws.
b. The Constitutional Adequacy of the Ballot Title of I-776
Having determined that I-776 has only one subject (limiting license tab
fees on cars and light trucks), this court must consider the second
requirement of article II, section 19--that the subject be expressed in the
ballot title. Wash. Fed'n, 127 Wn.2d at 555. To be constitutionally
adequate, 'the title need not be an index to the contents, nor must it
provide details of the measure.' Amalgamated, 142 Wn.2d at 217. It
satisfies the constitutional requirement 'if it gives notice that would
lead to an inquiry into the body of the act, or indicate to an inquiring
mind the scope and purpose of the law.' YMCA v. State, 62 Wn.2d 504, 506,
383 P.2d 497 (1963). As with the single-
subject requirement, the subject-in-title requirement of article II,
section 19 'is to be liberally construed in favor of the legislation.'
Wash. Fed'n, 127 Wn.2d at 555.
By statute, the ballot title for an initiative to the people has three
parts: '(a) A statement of the subject of the measure; (b) a concise
description of the measure; and (c) a question in the form prescribed in
this section for the ballot measure in question.' RCW 29.79.035(1). The
statute further requires that the ballot title 'substantially' follow a
prescribed format: ''Initiative Measure No. . . . concerns (statement of
subject). This measure would (concise description). Should this measure
be enacted into law?'' Id. at (2). Moreover, the statute puts a 10-word
limit on the 'statement of the subject' and a 30-word limit on the 'concise
description.' Id. at (1). Consistent with the statute, the ballot title
of I-776 expresses the subject in its first sentence: 'Initiative Measure
No. 776 concerns state and local government charges on motor vehicles.' CP
at 18 (emphasis added). The second sentence tells what the measure would
do: 'This measure would require license tab fees to be $30 per year for
motor vehicles, including light trucks. Certain local-option vehicle
excise taxes and fees used for roads and transit would be repealed.' Id.
(emphasis added).
We see no constitutional defect in this ballot title. Because we have
determined that policy language does not yield additional 'subjects' for
article II, section 19 analysis, the ballot title was not obliged to
address the drafters' desire for a revote on changes to Sound Transit's
light rail project. Nor was the ballot title required to mention the
detail that I-776 would not repeal RCW 46.01.140(4)(a) and (e), which
imposed fees totaling $3.50 for license tab applications processed by
agents. The ballot title, which used 38 words of the 40 permitted by
statute, was sufficiently detailed to prompt an inquiring mind to read the
initiative for further details.
In sum, Pierce County has not met its burden of showing beyond a reasonable
doubt that I-776's ballot title failed 'to notify members of the
Legislature and the public of the subject matter of the measure.'
Amalgamated, 142 Wn.2d at 207.
I-776's Alleged Impairment of King County's Contracts. Article I, section
23 of the state constitution provides that '{n}o . . . law impairing the
obligations of contracts shall ever be passed.' For an impairment to be
found, there must be a 'contractual relationship,' and the law must
'substantially impair' that relationship; if these two criteria are met,
the law will be declared unconstitutional unless the impairment is
'reasonable and necessary to serve a legitimate public purpose.' Tyrpak v.
Daniels, 124 Wn.2d 146, 152, 874 P.2d 1374 (1994).
The focus here is on the second criterion, substantial impairment. King
County asserted, and the superior court agreed, that I-776's repeal of RCW
82.80.020 impaired its contract with certain bondholders. Under that
statute, King County (and three other counties) had adopted a $15 local fee
for licensing vehicles. In October 2002, the month prior to passage of I-
776, King County made the following disclosure in its Official Statement to
all bond purchasers:
{I-776} has qualified for the State-wide ballot for the November 5, 2002
general election. If approved, I-776 would require local option vehicle
license fees to be $30 per year and would repeal certain laws allowing
governments to impose taxes or fees on motor vehicles for transportation
purposes, including annual local option vehicle license fees for
transportation purposes. The County currently imposes an annual local
option vehicle license fee in the maximum authorized amount of $15.00,
which generates approximately $5 million in annual revenues.
CP at 1185; see Mun. of Metro. Seattle v. O'Brien, 86 Wn.2d 339, 350, 544
P.2d 729 (1976) (using Official Statement to assess bond contract
impairment since bonds are 'sold on the basis of representations contained
in {the} Official Statement'). King County's Official Statement went on to
make the following pledge to bondholders:
It is impossible to predict whether I-776 will be approved by the voters,
or, if approved, whether it will be implemented in such a way as to prevent
the County from imposing or collecting such local option vehicle license
fees. However, the County believes that even if I-776 is approved by the
voters and implemented, it will nonetheless have sufficient revenues from
other revenues and taxes pledged to payment of debt service on the Bonds to
pay the principal of and interest on the Bonds when due. In any event,
even if I-776 is approved by the voters and implemented in a manner that
precludes the County from imposing the local option vehicle license fee,
the County has pledged in the Bond Ordinance to pay debt service on the
Bonds from ad valorem property taxes and other revenues, taxes and money of
the County legally available for such purposes.
CP at 1185 (emphasis added). Thus, King County advised the bondholders
that I-776's enactment would repeal the statutory authority under which it
had collected a local option motor vehicle fee, but it assured the
bondholders that, even without that fee, the county had pledged other
sources of revenue sufficient to meet its bond obligations.
As this court stated in Tyrpak, 'the relevant question is whether the
legislation detrimentally affects the financial framework which induced the
bondholders originally to purchase the bonds.' 124 Wn.2d at 153-54
(emphasis added). In Tyrpak, the 'financial framework' inducing the
bondholders' purchase of bonds from the port district did not include any
awareness of an imminent annexation of a portion of the district's land
area. Rather, the bondholders were induced to purchase the bonds by the
district's boundaries and tax base as they existed prior to any legislation
annexing its land. In contrast, the bondholders at issue here were fully
apprised of the impending vote on I-776 and on its inclusion of a repeal of
the $15 local option vehicle license fee. Unlike the annexation
legislation in Tyrpak, the initiative measure in the present case was
plainly part of the 'financial framework' under which the bond agreement
was reached. King County's bondholders knew prior to purchasing the bonds
that I-776 was on the ballot and that its passage would repeal the $15
local option vehicle license fee. Moreover, the Official Statement assured
the bondholders that the county would pay the bond's debt service from
other revenue sources.
Given 'the financial framework which induced the bondholders originally to
purchase the bonds,' we cannot conclude that I-776 'substantially
impair{ed}' King County's contractual relationship with its bondholders.
Tyrpak, 124 Wn.2d at 152, 153-54. We therefore hold that Pierce County has
failed to show beyond a reasonable doubt that I-776 violates article I,
section 23 of the state constitution.
Additional Constitutional Issues Raised by Pierce County and Sound Transit.
The superior court left some of the plaintiffs' constitutional challenges
undecided. Pierce County and Sound Transit renew those issues on direct
appeal as alternative grounds for affirming the superior court's decision.
Ertman v. City of Olympia, 95 Wn.2d 105, 108, 621 P.2d 724 (1980).
First, Pierce County contends that I-776 violates precepts of local home
rule set forth in our state constitution under article XI, section 4
(granting local voters the right to create their own governments) and
section 12 (denying the state legislature any power to impose taxes on
local governments for local purposes). The thrust of this argument is
that, by repealing the statutory authority under which some counties had
imposed the $15 local option vehicle fee and under which Sound Transit had
levied the MVET, I-776 imposed a tax on those local governments by
requiring them to find other funding sources for local transportation
projects. The argument lacks merit. Article XI, section 12 permits the
state to legislate what taxes and fees local governments are authorized to
impose: 'The legislature . . . may, by general laws, vest in the corporate
authorities {of counties, cities, towns or other municipal corporations},
the power to assess and collect taxes.' Each local government, in its
discretion, then decides whether to impose the taxes and fees authorized by
the State's general laws. The legislature--or the people legislating by
initiative--may rescind by general laws the authority previously granted.
When that happens, as here, no violation of article XI, section 12 occurs.
Sound Transit argues that, in repealing the MVET, I-776 exceeded the scope
of the initiative power prescribed in article I, section 1 of the state
constitution. Sound Transit relies on Ruano v. Spellman, 81 Wn.2d 820, 505
P.2d 447 (1973), which concerned the efforts of citizens to stop the
Kingdome's construction by filing an initiative under the King County
charter. The Ruano court determined that only administrative acts remained
and that the charter's initiative power did not extend to administrative
acts. Id. at 823-25. However, whereas the Ruano initiative was a local
effort to stop administrative acts of a local government, I-776 is a
statewide initiative that repeals a general act of the legislature and has
no legal effect on any legislative or administrative act of Sound Transit.
As a general law repealing an existing general law (RCW 81.104.160), I-776
does not exceed the scope of the people's constitutionally granted
initiative power.
Finally, Sound Transit suggests that I-776's repeal of the MVET violated
the transit agency's due process rights, guaranteed in article I, section 3
of the state constitution and in the fourteenth amendment to the United
States Constitution. The claimed deprivation of 'life, liberty, or
property' caused by I-776 presupposes that, when a local government decides
to embark on a public project, the people of that jurisdiction acquire a
vested property right in the completion of the project, regardless of
subsequent state law. No authority exists for that proposition. Sound
Transit argues vaguely about the voters' due process rights because case
law establishes that article I, section 3 does not insulate cities from
state action. See, e.g., Moses Lake Sch. Dist. No. 161 v. Big Bend Cmty.
Coll., 81 Wn.2d 551, 503 P.2d 86 (1972) (upholding state authority to
transfer community college ownership from school district to state without
compensation), appeal dismissed, 412 U.S. 934, 93 S. Ct. 2776, 37 L. Ed. 2d
393 (1973). Local governments find protection for completion of their
public works in article I, section 23, which prohibits passage of any law
'impairing the obligations of contracts.' Sound Transit has no basis for
asserting that I-776 caused a deprivation of a vested property right.
In sum, Pierce County and Sound Transit are unable to establish beyond a
reasonable doubt that I-776 violated constitutional precepts of local home
rule, exceeded the scope of the initiative power, or deprived the voters of
a vested property right.
Salish's Request for Attorney Fees. Salish requests attorney fees under
the 'common fund principle' set forth in Weiss v. Bruno, 83 Wn.2d 911, 523
P.2d 915 (1974). The Weiss court endorsed the recovery of a reasonable
attorney fee where the court is 'presented with: (1) a successful suit
brought by petitioners (2) challenging the expenditure of public funds (3)
made pursuant to patently unconstitutional legislative and administrative
actions (4) following a refusal by the appropriate official and agency to
maintain such a challenge.' Id. at 914. Salish cannot show, however, that
the continued collection of the $15 local option fee in King and Pierce
Counties was an unconstitutional 'expenditure of public funds,' since it
was, first of all, a collection of funds and, second, was made pursuant to
superior court orders. Additionally, because the State has challenged the
collection, the fourth element above would not be met as to that claim.
Nor can a basis for an attorney fee award be found in Salish's complaint
against Sound Transit (that the transit agency had been formed
unconstitutionally and had thus been illegally collecting the MVET under
RCW 81.104.160), since that claim was beyond the scope of the proceedings
before the superior court.
CONCLUSION
We hold that I-776 embraced a single subject and expressed that subject in
its title, that I-776 did not 'substantially impair' King County's
contractual obligations to its bondholders, and that the additional
constitutional claims that the superior court did not reach were
unavailing. We therefore reverse the trial court's grant of summary
judgment and remand the matter for proceedings not inconsistent with this
opinion. Salish's request for attorney fees at trial and on appeal is
denied.
APPENDIX A
Section 1 of I-776, 'policies and purposes,' reads as follows:
This measure would require license tab fees to be $30 per year for motor
vehicles and light trucks and would repeal certain government-imposed
charges, including excise taxes and fees, levied on motor vehicles.
Politicians promised '$30 license tabs are here to stay' and promised any
increases in vehicle-related taxes, fees and surcharges would be put to a
public vote. Politicians should keep their promises. As long as taxpayers
must pay incredibly high sales taxes when buying motor vehicles (meaning
state and local governments receive huge windfalls of sales tax revenue
from these transactions), the people want license tab fees to not exceed
the promised $30 per year. Without this follow-up measure, 'tab creep'
will continue until license tab fees are once again obscenely expensive, as
they were prior to Initiative 695. The people want a public vote on any
increases in vehicle-related taxes, fees and surcharges to ensure increased
accountability. Voters will require more cost-effective use of existing
revenues and fundamental reforms before approving higher charges on motor
vehicles (such changes may remove the need for any increases). Also,
dramatic changes to transportation plans and programs previously presented
to voters must be resubmitted. This measure provides a strong directive to
all taxing districts to obtain voter approval before imposing taxes, fees
and surcharges on motor vehicles. However, if the legislature ignores this
clear message, a referendum will be filed to protect the voters' rights.
Politicians should just do the right thing and keep their promises.
CP at 370 (emphasis added).
APPENDIX B
Section 7, 'legislative intent relating to outstanding bonds,' provides as
follows:
If the repeal of taxes in section 6 of this act affects any bonds
previously issued for any purpose relating to light rail, the people expect
transit agencies to retire these bonds using reserve funds including
accrued interest, sale of property or equipment, new voter approved tax
revenues, or any combination of these sources of revenue. Taxing districts
should abstain from further bond sales for any purpose relating to light
rail until voters decide this measure. The people encourage transit
agencies to put another tax revenue measure before voters if they want to
continue with a light rail system dramatically changed from that previously
represented to and approved by voters.
CP at 372 (emphasis added).
WE CONCUR:
1 Regarding the prior license tab initiative, see Amalgamated Transit Union
Local 587 v. State, 142 Wn.2d 183, 256, 11 P.3d 762, 27 P.3d 608 (2000)
(holding that Initiative Measure 695 violated 'several state constitutional
provisions,' among them the requirement that a bill embrace no more than
one subject).
2The original plaintiffs (now respondents before this court) will be
referred to herein as 'Pierce County.'
3 Pierce County, the State, and Salish agreed below that the title was
'general.' See CP at 1724. The State questions 'whether going through the
exercise of labeling a title as 'broad' or 'restrictive' really assists the
constitutional analysis,' but we need not address that concern here.
Appellant's Br. at 23. See Citizens, 149 Wn.2d at 632-36 (discussing
'general' and 'specific' titles and reaffirming that 'the 'rational unity'
analysis' applies to legislation bearing a 'general' title).
4 CP at 1732. See Webster's, supra, at 1783 (defining 'precatory words' as
'words of recommendation, request, entreaty, wish, or expectation employed
in legal instruments (as wills) and often resulting in no effective gift or
rights being created'); Black's Law Dictionary 1195 (7th ed. 1999)
(defining 'precatory' as 'requesting, recommending, or expressing a desire
for action, but usu. in a nonbinding way').
5 'Also, dramatic changes to transportation plans and programs previously
presented to voters must be resubmitted.' CP at 370. For the complete
text of section 1, see Appendix A.
6 CP at 1735. Despite terming the provision precatory, the superior court
commented on 'the use of mandatory language' in the sentence, but the word
'must' in this context need not be considered mandatory. See Webster's,
supra, at 1492 (defining the verb 'must' at 1b as 'is urged to: ought by
all means to'). That this sentence in section 1 is not mandatory is
reinforced by the third sentence in section 7: 'The people encourage
transit agencies to put another tax revenue measure before voters if they
want to continue with a light rail system dramatically changed from that
previously represented to and approved by voters.' CP at 372 (emphasis
added).
7 See In re Title, Ballot Title & Submission Clause, & Summary for 1999-
2000 # 265, 3 P.3d 1210 (Colo. 2000) (rejecting precatory language as basis
for second subject in initiative measure).
8 'obiter dictum . . . . {Latin 'something said in passing'} A judicial
comment made during the course of delivering a judicial opinion, but one
that is unnecessary to the decision in the case and therefore not
precedential (though it may be considered persuasive).' Black's Law
Dictionary 1100 (7th ed. 1999).
9 The precatory sentences that the superior court extracted from I-776 are
found in sections 1 and 7, which are entitled 'Policies and Purposes' and
'Legislative Intent Relating to Outstanding Bonds.' CP at 370, 372. In
contrast, the titles of the sections that the superior court termed
'operative,' CP at 1728, began with the word 'Requiring' or 'Repealing.'
CP at 370-72.
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