THE HONORABLE ROBERT H. ALSDORF
Hearing Date: March 6, 2000
SUPERIOR COURT OF WASHINGTON FOR KING COUNTY
CITY OF BAINBRIDGE ISLAND; CITY OF BREMERTON; CITY OF LAKEWOOD, Plaintiffs, v. STATE OF WASHINGTON, Defendant, v. THE $30 LICENSE TAB INITIATIVE CAMPAIGN, Intervenor.
NO. 00-2-00048-1 SEA
CITIES' MOTION AND SUPPORTING MEMORANDUM FOR SUMMARY JUDGMENT REGARDING CONSTITUTIONALITY AND INTERPRETATION OF INITIATIVE 695
TABLE OF CONTENTS
RELIEF REQUESTED
STATEMENT OF FACTS
STATEMENT OF ISSUES
EVIDENCE RELIED ON
LEGAL ARGUMENT
I. Initiatives are Subject to Constitutional Limitations.
II. I-695 Violates the Washington Constitution for Two "Procedural" Reasons.
A. I-695 Violates Article II, Section 37 of the Constitution In That It Fails to Set Out at Full Length the Statutes It Purports to Amend or Repeal.
B. Initiative 695 Violates Article II, Section 19 of the Constitution As It Covers More Than a Single Subject, and the Ballot Title Does Not Properly Describe the Scope of the Initiative.
III. I-695 Is Unconstitutional Because It Conflicts With Numerous "Substantive" Sections of the Washington Constitution.
A. I-695 Cannot Amend the Constitution.
- An Initiative Cannot Change the Structure of Government.
- I-695 Is Unconstitutional Because It Conflicts with Article VII, Section 1.
- I-695 Is Unconstitutional Because it Conflicts With Article II, Section 22.
- I-695 Is Unconstitutional Because It Conflicts With Article II, Section I of the Constitution.
- I-695 Is Unconstitutional Because it Conflicts with Article XI, Section 12 of the Constitution.
- I-695 is Unconstitutional Because it Conflicts with Article VIII, Section 1(f).
- I-695 Is Unconstitutional Because It Conflicts With Article I, Section 23.
IV. The Requirement of I-695 that the Voters Approve All Tax Increases Is Unconstitutionally Vague.
CONCLUSION
APPENDICES A-E
TABLE OF AUTHORITIES
CASES
Ballot Title for Initiative 333
88 Wn.2d 192, 558 P.2d 248 (1997)
Belas v. Kiga
135 Wn.2d 913, 959 P.2d 1037 (1998)
Boston Milk Producers, Inc. v. Halperin
446 A.2d 33 (Maine 1982)
Charron v. Miyahara
90 Wn. App. 324, 950 P.2d 532 (1998)
Clark v. Seiber
48 Wn.2d 783, 296 P.2d 680 (1956)
Continental Ill. Nat'l Bank & Trust Co. v. State of Washington
696 F.2d 692 (9th Cir.), appeal dismissed, 460 U.S. 1077 (1983)
Culliton v. Chase
174 Wash. 363, 25 P.2d 81 (1933)
De Cano v. State
7 Wn.2d 613, 110 P.2d 627 (1941)
Durocher v. King County
80 Wn.2d 139, 492 P.2d 547 (1972)
Ford v. Logan
79 Wn.2d 147, 483 P.2d 1247 (1971)
Fritz v. Gorton
83 Wn.2d 275, 517 P.2d 911 (1974)
Gerberding v. Munro
134 Wn.2d 188, 210, P.2d 1366 (1998)
Gilman v. Tax Comm'n
32 Wn.2d 480, 202 P.2d 443 (1949)
Granite Falls Library Capital Facility Area v. Taxpayers of Granite Falls
134 Wn.2d 825, 953 P.2d 1150 (1998)
Gravel v. Gregoire
519 U.S. 862 (1996)
Gruen v. State Tax Comm'n
35 Wn.2d 1, 211 P.2d 651 (1949)
Heider v. Seattle
100 Wn.2d 874, 675 P.2d 597 (1984)
Legislature v. Eu
816 P.2d 1309 (Cal. 1991)
Leonard v. Bothell
87 Wn.2d 847, 557 P.2d 1306 (1976)
Metropolitan Seattle v. Seattle
57 Wn.2d 446, 357 P.2d 863 (1960)
Nelson v. National Fund Raising Consultants, Inc.
120 Wn.2d 382 842 P.2d 473 (1992)
Northern Pac. Ry. Co. v. Pierce County
51 Wash. 12, 97 P. 1099 (1908)
Patrice v. Murphy
136 Wn.2d 845, 966 P.2d 1271 (1998)
Philadelphia II v. Gregoire
128 Wn.2d 707, 911 P.2d 389 (1996)
Ruano v. Spellman
81 Wn.2d 820, 505 P.2d 447 (1973)
Seattle Bldg. & Constr. Trades Council v. City of Seattle
94 Wn.2d 740, 620 P.2d 82 (1980)
Seattle v. State
103 Wn.2d 663, 694 P.2d 641 (1985)
In re Sehome Park Care Ctr.
127 Wn.2d 774, 903 P.2d 443 (1995)
Seven Gables Corp. v. MGM/UA Entertainment Co.
106 Wn.2d 1, 721 P.2d 1 (1986)
Spokane County ex. Rel. County Comm'rs v. State
136 Wn.2d 644, 966 P.2d 305 (1998)
State ex rel. Heavey v. Murphy
138 Wn.2d 800, 982 P.2d 611 (1999)
State ex rel. Jones v. Charboneau's
27 Wn. App. 5, 615 P.2d 1321 (1980), review denied, 94 Wn.2d 1021 (1980)
State ex rel. Keeler v. Port of Peninsula
89 Wn.2d 764, 575 P.2d 713 (1978)
State ex rel. Washington State Finance Committee v. Martin
62 Wn.2d 645, 384 P.2d 883 (1963)
State ex rel. Washington Toll Bridge Auth. v. Yelle
32 Wn.2d 13, 200 P.2d 467 (1948)
State v. Broadaway
133 Wn.2d 118, 942 P.2d 363 (1997)
State v. Thorne
129 Wn.2d 736, 921 P.2d 514 (1996)
Estate of Turner v. Dept. of Revenue
106 Wn.2d 649, 724 P.2d 1013 (1986)
Tyrpak v. Daniels
124 Wn.2d 146, 874 P.2d 1374 (1994)
Von Hoffman v. Quincy
71 U.S. 535, 18 L. Ed. 403 (1866) 32
Washington Citizen Action v. Ins. Comm'r
94 Wn. App. 64 (1999), review denied, 138 Wn.2d 1004 (1999)
Washington Education Ass'n. v. State
97 Wn.2d 899, 652 P.2d 1347 (1982)
Washington Fed'n of State Employees v. State
127 Wn.2d 544, 901 P.2d 1028 (1995)
Yelle v. Kramer
83 Wn.2d 464, 520 P.2d 927 (1974)
STATUTES
CR 56
CR 57
RCW 29.79.040
RCW 29.81.020
RCW 35.21.020
RCW 35.21.080
RCW 35.21.130
RCW 35.21.152
RCW 35.21.280
RCW 35.21.710
RCW 35.21.715
RCW 35.21.717
RCW 35.21.768
RCW 35.43.280
RCW 35.68.070
RCW 35.86A.070(3)
RCW 35.92.060
RCW 35.92.870
RCW 35.97.030
RCW 41.04.230(7)
RCW 43.16.313
RCW 46.160.060
RCW 82.14.320
RCW 82.14.330
RCW 82.44.015
RCW 82.44.020
RCW 82.44.041
RCW 82.44.110
RCW 82.44.110 and 82.44.150
RCW 82.44.150
RCW 82.44.155
OTHER AUTHORITIES
Julian N. Eule, Judicial Review of Direct Democracy
99 Yale L.J. 1503 (1990)
Julia Anne Guizan, Notes and Comment: Is the California Civil Rights Initiative a Wolf in Sheep's Clothing?: Distinguishing Constitutional Amendment from Revision in California's Initiative Process
31 Loy. L.A.L. Rev. 261, 264, 2721 (1997)
Hans A. Linde, Voices of the People: Essays on Constitutional Democracy in Memory of Professor Julian N. Evle: Practicing Theory: The Forgotten Law of Initiative Lawmaking
45 UCLA L. Rev. 1735, 1756 (1998)
Rosinow, Beverly P., ed. The Journal of the Washington State Constitutional Convention 1889, (1962) 29
Marc Slomin & James H. Lowey, Comment, Judicial Review of Laws Enacted By Popular Vote
55 Wash. L. Rev. 175 (1979)
Recent Case, 105 Harv. L. Rev. 953 (1992) 25
WASHINGTON CONSTITUTIONAL PROVISIONS
Article I, Section 3
Article 1, Section 23
Article II, Section 1
Article II, Section 1(b)
Article II, Section 7
Article II, Section 19
Article II, Section 22
Article II, Section 25
Article II, Section 37
Article II, Section 41
Article III, Section 25
Article VII, Section 1
Article VII, Section 2
Article VII, Section 7
Article VIII
Article VIII, Section 1(f)
Article IX, Section 9
Article XI, Section 1
Article XI, Section 11
Article XI, Section 10
Article XI, Section 12
Article XI, Section 16
Article XXII 18,
On November 2, 1999, Washington voters approved Initiative 695 ("I-695") which took effect on January 1, 2000. Plaintiff Cities of Bainbridge Island, Bremerton and Lakewood are each seriously impacted by I-695. Plaintiffs submit this memorandum in support of their Motion for Summary Judgment Regarding the Constitutionality and Interpretation of I-695.
RELIEF REQUESTED
Pursuant to CR 56 and CR 57, the Cities of Bainbridge Island and Bremerton respectfully request that the Court enter the following relief:
1. Declare that I-695 violates the Washington State Constitution and is, therefore, null and void;
2. Enjoin the State of Washington and its officials from complying with or enforcing any provision of I-695.
In the alternative, the Cities of Bainbridge Island, Bremerton and Lakewood respectfully request that the Court enter the following relief:
1. Declare that the provisions of I-695 do not apply to charges made by the Cities for goods and proprietary services.
In either alternative, plaintiffs respectfully request that the Court enter the following relief:
1. Award plaintiffs their litigation costs and fees; and
2. Such other and further relief as the Court deems just and appropriate.
STATEMENT OF FACTS
Plaintiffs City of Bainbridge Island, City of Bremerton and City of Lakewood ("Cities") are each cities in the State of Washington. The Cities are composed of thousands of residents who rely on the Cities for essential public services including police and fire protection and public safety, health and welfare programs. See Mayor Lynn S. Horton's Affidavit in Support of Cities' Motion for Summary Judgment ("Horton Affidavit"); Affidavit of D. Scott Rohlfs ("Rohlfs Affidavit") Affidavit of Dwight Sutton ("Sutton Affidavit").
The Cities were created and operate under a constitutional and legislative framework. Under the Washington State Constitution and various legislative enactments, the Cities levy and collect taxes, fees and charges, administer various programs and supply essential public services. See Horton Affidavit; Rohlfs Affidavit; Sutton Affidavit.
Prior to I-695, Washington motor vehicle owners paid a vehicle license fee and a motor vehicle excise tax when they registered or renewed the licenses on their vehicles. The vehicle license fee, set by RCW 46.160.060, generally provided a vehicle license fee of $28.25 for newly registered vehicles and $24.25 for renewals.
The primary excise tax was the Motor Vehicle Excise Tax ("MVET") set forth in RCW 82.44.020. During 1998, the MVET (and related excise taxes) generated about $750 million. As of July 1, 1999 the revenue obtained from MVET was distributed as follows:
|
51.2% |
- State Transportation Fund |
|
25.2% |
- State Motor Vehicle Fund |
|
7.3% |
- County and Municipal Tax Equalization |
|
6.3% |
- City Police and Fire Protection |
|
5.4% |
- County and Municipal Criminal Justice Assistance |
|
3.2% |
- Public Health Assistance |
|
1.4% |
- Distressed County Assistance |
RCW 82.44.110(1). As is evident from this distribution, the Cities had a significant stake in the MVET.
I-695 has three main components: (1) it sets the state motor vehicle license fee at $30.00; (2) repeals the MVET and programs funded by the MVET; and (3) requires voter approval for all new or increased monetary charges that any level of government in Washington may impose.
The Cities are severely impacted by I-695. As recipients of motor vehicle license fee and excise tax revenue, they will lose the funds needed for essential transportation, police, fire, criminal justice and public health services. See Horton Affidavit; Affidavit of Ralph W. Eells ("Eells Affidavit"); Rohlfs Affidavit; Sutton Affidavit.
Equally important, I-695 requires the Cities to seek voter approval of all new or increased revenue generating measures. This requirement impairs the Cities' contractual obligations to their bondholders. See Horton Affidavit; Eells Affidavit; Affidavit of Cynthia Weed ("Weed Affidavit").
I-695 is deeply flawed. It directly violates and conflicts with the Constitution of the State of Washington. The Cities do not wish to substitute their judgment for the people's will. They do seek to measure I-695 against Washington's Constitution. They are confident that the Court will reject I-695 for the reasons set out below.
STATEMENT OF ISSUES
I-695 is subject to the Washington Constitution. It suffers from numerous constitutional deficiencies which can be broadly organized into two groups.
First, are the "procedural" problems with the adoption of I-695. The Washington Constitution requires that enactments specify all statutes they purport to repeal or amend. I-695 fails this test. The Constitution also requires enactments to embrace only one subject to ensure voters are informed and to prevent "logrolling." I-695's multiple subjects violate this requirement.
The sEcond group of deficiencies can be described as "substantive" constitutional issues. Like the "procedural" problems, they are based on the Washington Constitution. I-695 is an unconstitutional attempt to permanently alter the constitutional structure of government, something an initiative can never do. Moreover, I-695 conflicts with at least six articles of the Washington Constitution.
The Cities will demonstrate that I-695 is so ambiguous as to be void, or, alternatively, at the minimum requires judicial interpretation.
EVIDENCE RELIED ON
Cities' Motion relies upon the following evidence
1. Cities' Complaint;
2. State's Answer;
3. Memorandum and Appendices Filed in Support of Cities' Motion;
4. Affidavit of Ralph W. Eells;
5. Affidavit of D. Scott Rohlfs;
6. Affidavit of Cynthia Weed;
7. Affidavit of Lynn S. Horton;
8. Affidavit of Dwight Sutton.
LEGAL ARGUMENT
I. Initiatives are Subject to Constitutional Limitations.
Initiatives are subject to the restrictions of the Constitution. Yelle v. Kramer, 83 Wn.2d 464, 520 P.2d 927 (1974). They are, as are statutes, presumed to be constitutional. Parties challenging an initiative bear the heavy burden of showing that the initiative is unconstitutional. State ex rel. Heavey v. Murphy, 138 Wn.2d 800, 982 P.2d 611 (1999).
Nevertheless, the courts must be cautious to avoid giving undue deference to initiatives to ensure that initiatives do not tread on constitutional limitations. As the Court stated in Yelle v. Kramer:
We reject the contention of amicus that appropriate constitutional provisions do not apply to initiatives. To do otherwise would be a recognition that we have an initiative process "governed by men and not by law." Nothing in this opinion is to be interpreted as opening a Pandora's box, releasing a runaway, uncontrolled initiative process.
Washington Toll Bridge Authority, 83 Wn.2d at 472.
The Supreme Court expressed a similar caution with respect to Article II, Section 19, of the Constitution, a provision at issue in this case. In State ex rel. Washington Toll Bridge Auth. v. Yelle, 32 Wn.2d 13, 24, 200 P.2d 467 (1948), the Court reviewed the beneficial purposes behind Article II, Section 19 and observed:
[W]hen laws are enacted or amended in substantial violation of this guaranty, the taint of at least suspicion of unfairness is upon them, and courts should not hesitate to declare them void.
Yelle, 32 Wn.2d at 24, quoting State ex rel. Potter v. King County, 49 Wash. 619, 623 96 Pac. 156 (1908).
A court, while giving due deference to the presumption of an initiative's constitutionality, should consider the lack of procedural safeguards in the initiative campaign process. The process by which an initiative is enacted into law is very different from legislative consideration of a measure. Voters may approve an initiative having only read the ballot title. Washington Fed'n of State Employees v. State, 127 Wn.2d 544, 554, 901 P.2d 1028 (1995). A defective ballot title can mislead a substantial number of voters. State v. Broadaway, 133 Wn.2d 118, 125, 942 P.2d 363 (1997). As noted by Justice Rosellini writing for the plurality in Fritz v. Gorton, 83 Wn.2d 275, 333, 517 P.2d 911 (1974), quoting the California Supreme Court:
It is common knowledge that an initiative measure is originated by some organization or a small group of people and they circulate a petition requiring the signature of only eight percent of the voters; that the measure is then placed upon the ballot, and a large number of the population, not knowing what the context of the act is, rely solely upon its title as a guide to intelligent voting thereon. (Internal quotations omitted.)
Further, an initiative is not subject to the measured review of the legislative process. There are no fact-finding hearings during an initiative campaign, and initiatives cannot be amended during a campaign to cure flaws in the concept or drafting:
In the legislature the committee process assures that such a [logrolling] provision will be detected: the amendment process provides the remedy. The legislature can delete parts of a proposal it disfavors; the electorate is faced with Hobson's choice; reject what it likes or adopt what it dislikes. Only Article 2, Section 19, preserves the integrity of the initiative process.
Fritz, 83 Wn.2d at 333.
Once enacted, an initiative is very difficult to amend for at least two years.1 The courts must give care when construing laws enacted by the public to ensure that constitutional safeguards are given appropriate weight.2
II. I-695 Violates the Washington Constitution for Two "Procedural" Reasons.
I-695 fails constitutional scrutiny for two "procedural" reasons. First, it violates Article II, Section 37 of the Constitution because it fails to set forth at full length the statutes it attempts to amend or repeal. SEcond, I-695 violates Article II, Section 19 of the Constitution because it covers more than one subject and because the ballot title does not accurately describe the initiative's scope. Each of these constitutional flaws are independently fatal to I-695.
A. I-695 Violates Article II, Section 37 of the Constitution In That It Fails to Set Out at Full Length the Statutes It Purports to Amend or Repeal.
Article II, Section 37 of the Washington Constitution provides:
No act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length.
Initiatives are subject to this disclosure requirement to the same extent as legislative enactments. State v. Thorne, 129 Wn.2d 736, 753, 921 P.2d 514 (1996).
I-695 does not comply with the mandate of Article II, Section 37. The initiative purports to repeal numerous statutes without setting out their text. Section 3 of the initiative states as follows: "The following acts or parts of acts that impose taxes and fees on vehicles are each repealed: ..." The section then goes on to string-cite 44 statutory sections with no recitation of the text of each section, much less any indication as to the purpose of each section.3 This is a clear violation of Article II, Section 37.
In fact, as discussed more fully below, nearly all the RCW sections purportedly repealed by Section 3 of I-695 have nothing to do with the imposition of taxes or fees on vehicles, as stated in the text of I-695, but instead provide for the funding of various programs vital to the health, safety and welfare of the Cities' citizens. By repealing the MVET, I-695 eliminated funding for programs which relied on that measure for revenue. Examples are numerous: I-695 eliminated funding for clean air programs. RCW 82.44.020. Repealing the MVET takes away a large share of funding for the transportation fund, the city and county criminal justice assistance accounts, and the county public health account. RCW 82.44.110. Repealing funding for RCW 82.44.150 significantly reduces funding for public transit. Repealing funding for RCW 82.44.155 eliminates MVET support for police and fire protection. I-695 also cuts funding for other critical services. By way of example, I-695 did not disclose to the voters of Bainbridge Island and Bremerton, ferry dependent communities, that passage of the initiative would severely cut ferry schedules, including loss of foot passenger ferries. See RCW 82.44.110(1)(c).
Because I-695 attempts to eliminate the funding for many important programs, it has an immense, adverse impact on the Cities' ability to serve their citizens. Article II, Section 37 is intended to prevent the adoption of new laws that do not disclose their impact on existing laws, such as the essential programs at issue here. Thorne, 129 Wn.2d at 753.
In addition to repealing statutory sections set out in the text of the initiative, I-695 would amend numerous statutes that give the Cities authority to raise revenue, without any reference to those statutes at all. This is also a violation of Article II, Section 37. Section 2 of I-695 provides: "Any tax increase imposed by the state shall require voter approval." The term "state" includes cities. I-695, § 2 (5). I-695 would effectively strip the Cities of their statutory authority to raise revenues, making a fundamental change in the authority of municipal governments.
Section 2 of I-695 adversely impacts many programs funded by sources other than the MVET. The Cities are authorized to raise revenues in a number of different ways. A principal source of revenue for cities is the business activity tax, a retail sales tax. RCW 35.21.710. In modifying this tax in 1982, the legislature recognized the importance that cities and other local governments have adequate revenue to fund vital services:
The legislature hereby recognizes the concern of local governmental entities regarding the financing of vital services to residents of this state. The legislature finds that local governments are an efficient and responsive means of providing these vital services to the citizens of this state. It is the intent of the legislature that vital services such as public safety, public health, and fire protection be recognized by all local governmental entities in this state as top priorities of the citizens of Washington." 1982 1st ex.s. c 49 § 1.
The Cities receive income from a range of other revenue measures. Examples range from an admission tax, RCW 35.21.280, and fees for off-street parking facilities, RCW 35.86A.070(3), to taxes on network telephone services, RCW 35.21.715, and internet services, RCW 35.21.717.4
On its face, I-695's "vote on every tax increase" provision makes every fee charged by the Cities subject to a plebiscite.5 These charges have nothing to do with the MVET, yet I-695 would seem to strip the Cities of rate-setting authority here as well.
Section 2 of I-695 imposes a fundamental impairment to the Cities' ability to raise revenue to fund necessary programs. Cities have important responsibilities derived from the Constitution. See, e.g., Const. Article XI, Sections 10, 12 and 16 (addressing, respectively, incorporation of municipalities, assessment and collection of taxes in municipalities and combined city-county municipalities). If Section 2 is allowed to stand, elected officials of the Cities will no longer be able to directly discharge their duties to fund and provide key services. Some of these services are mandated by the state and federal government and the Cities do not receive contributions for the costs of the services. Examples include the Federal and State Clean Water Acts, Growth Management Act, domestic violence victim and monitoring requirements applicable to municipal courts and salmon recovery efforts. By its explicit terms, I-695 requires every increase in taxes, fees and changes to be submitted to the voters for approval, no matter how necessary the Cities' officials believe them to be. This is not an incidental change of small constitutional significance. Section 2 of I-695 directly amends the Cities' statutory authority to levy taxes and shifts that authority to the voters.
The Cities recognize that the courts have concluded that enactment of an initiative that has only an incidental impact on other statutes of the same subject does not fall within the proscription of Article II, Section 37. Thorne, 129 Wn.2d at 756 (holding that "Initiative 593 fully set out the provisions of the statute which are directly amended by the new law"). The courts view incidental impacts of new laws on existing statutes as not being of constitutional magnitude. Washington Citizen Action v. Ins. Comm'r, 94 Wn. App. 64 (1999), review denied, 138 Wn.2d 1004 (1999). In addition, an initiative provision that is complete in itself may not necessarily violate Article II, Section 37. Thorne, 129 Wn.2d at 754.
When reading a new statute, a citizen or legislator must not be required to search out other statutes which are amended to know the law on the subject treated by the new statute. The new statute must either be complete in itself or it must show explicitly how it relates to statutes that it amends.
Thorne, 129 Wn.2d at 756 (citation omitted).
In this instance, however, while Section 2 of the initiative stands in isolation, it has a broad, pervasive impact on the entirety of the Cities' taxing authority. The fundamental question facing the Court is: "Would a straightforward determination of the scope of rights or duties under the existing statutes be rendered erroneous by the new enactment." Washington Education Ass'n. v. State, 97 Wn.2d 899, 903, 652 P.2d 1347 (1982) (internal quotation and citation omitted). When a measure modifies existing law, the change must be apparent. Id. at 904. Here, Section 2 of I-695 would render superfluous virtually every statute that gives the Cities revenue generating authority, with no way for a voter to tell which statutes are affected by the initiative.
In summary, I-695 violates Article II, Section 37 in two ways. First, it fails to set out in full the text of the statutes it would directly amend relating to program funding. SEcond, the initiative fails to refer to, or set out, the numerous city revenue raising authorities it renders superfluous. Initiative 695 is, therefore, unconstitutional in its entirety.
B. Initiative 695 Violates Article II, Section 19 of the Constitution As It Covers More Than a Single Subject, and the Ballot Title Does Not Properly Describe the Scope of the Initiative.
Article II, Section 19 of the Constitution provides: "No bill shall embrace more than one subject, and that shall be expressed in the title."
In Fritz, supra, the Court held that initiatives are subject to Article II, Section 19.6 In writing for the plurality, Justice Rosellini found an opinion of the Oregon Supreme Court to be instructive:
A great number of voters undoubtedly have a superficial knowledge of proposed laws to be voted upon, which is derived from newspaper comments or from conversation with their associates. We think the assertion may safely be ventured that it is only a few persons who earnestly favor or zealously oppose the passage of a proposed law initiated by petition who have attentively studied its contents and know how it will probably affect their private interests. The greater number of voters do not possess this information and usually derive their knowledge of the contents of a proposed law from an inspection of the title thereof, which is sometimes secured only from the very meager details afforded by a ballot which is examined in an election booth preparatory to exercising the right of suffrage. It is important, therefore, that the title to laws proposed in the manner indicated should strictly comply with the constitutional requirement.
Fritz, 83 Wn.2d at 331-332, quoting State ex rel. v Richardson, 48 Ore. 309, 319, 85 P. 225 (1906) (italics in original).
The mandate of Article II, Section 19 has two components: First, an initiative shall not contain more than one subject. SEcond, the ballot title of the initiative shall reflect that subject. An initiative must satisfy both requirements or it is unconstitutional. Patrice v. Murphy, 136 Wn.2d 845, 852, 966 P.2d 1271 (1998). I-695 satisfies neither requirement.
The purpose behind Article II, Section 19 in the context of initiatives is threefold: (1) to fairly apprise the voters of the issues being considered; (2) to prevent surprise or fraud upon the voters; and (3) to prevent logrolling initiatives. Washington Toll Bridge Authority, 32 Wn.2d at 24-25; Patrice, 136 Wn.2d at 852. I-695 subverts each of these purposes.
The scope of I-695 goes beyond the first test of Article II, Section 19, the single subject limitation. In essence, I-695 has two provisions: Section 1 exchanges a value based vehicle licensee fee system for a flat $30 fee and Section 2 requires that all tax increases be approved by the voters. These are two different subjects: one establishes a flat $30 fee for vehicle licenses, the other restructures the fundamental relationship between government and the voters.
The wording of the ballot title for I-695 is fundamental in determining whether it complies with Article II, Section 19. See Patrice, 136 Wn.2d at 852-853 (bill titles must give clear information as to their contents). To determine the intent of an initiative, courts first look to the initiative's ballot title. Washington Toll Bridge Authority, 32 Wn.2d at 26; Washington Fed'n of State Employees, 127 Wn.2d at 556.
A ballot title may be drafted to cover a subject in either broad or narrow scope. If a broad, general title is adopted, there need only be "rational unity" between the title topic and the subtopics of the initiative to meet the requirements of Article II, Section 19. Fritz, 83 Wn.2d at 290. However, the courts will not liberally construe a narrowly drafted ballot title. Washington Fed'n of State Employees, 127 Wn.2d at 555-556. The courts will closely scrutinize an initiative with a specific or restricted ballot title to determine if it satisfies Article II, Section 19. De Cano v. State, 7 Wn.2d 613, 627, 110 P.2d 627 (1941).
In its Answer to the Cities' Complaint, the State takes the position that I-695 meets the rational unity test if the Court adopts the State's definition of the term "tax." See State's Answer at § 10.4, adopting the reasoning of a memorandum dated December 22, 1999, entitled "Scope of the Term Tax Under Initiative 695" (hereafter "AGO December Memo"),7 attached as Appendix D. The AGO December Memo, adopted as the State's formal legal position, defines the term "tax" "a compulsory payment for the support of government." Appendix D at 6. The Memo reaches this conclusion:
Because the Initiative reasonably cannot be interpreted to include in the definition of tax all monetary payments to government, and because the Initiative does not offer unambiguous definition of tax a court would resort to rules of statutory construction and to the legislative history of I-695 to determine the scope of the term, as it was used in the Initiative.
The AGO December Memo then concludes that under the definition of "tax" advanced in the memorandum, the rational unity test is met if their definition is adopted by the Court. See Appendix D at 7. However, the State virtually concedes that I-695 does not meet the requisite rational unity if the Court finds that the initiative intends a broader definition of tax.
Such a rational unity would be more difficult to articulate if I-695 were interpreted to require voter approval of new and increased payments to government that reasonably could not be termed taxes.
Appendix D at 7.
The Attorney General is responsible for drafting the official ballot title of an initiative in a true and impartial manner. RCW 29.79.040; State ex rel. Jones v. Charboneau's, 27 Wn. App. 5, 8-9, 615 P.2d 1321 (1980), review denied, 94 Wn.2d 1021 (1980), overruled in part on other grounds as stated in Charron v. Miyahara, 90 Wn. App. 324, 332 n.6, 950 P.2d 532 (1998). The Attorney General could have drafted a broad title for I-695. A narrow ballot title was chosen instead.
The official ballot title written by the Attorney General's office for I-695 is:
Shall voter approval be required for any tax increase, license tab fees be $30 per year for motor vehicles, and existing vehicle taxes be repealed?8
This is a specific, restrictive ballot title because it identifies the specific subjects of the initiative. "A restrictive title is one where a particular part or branch of a subject is carved out and selected as the subject of legislation." Broadaway, 133 Wn.2d at 127 (internal quotations and citations omitted). If the Attorney General believed at the time the ballot title was written that I-695 addressed a broad single subject - taxation - a more general description would have been required. Instead, the approach used by the Attorney General was to write a title trying to capture two disparate subjects: auto license fees and the electorate voting on all revenue measures. Indeed, the Attorney General's current valiant effort to portray I-695 as dealing with only one subject-taxation-is invalidated by the Initiative's scope of all revenue raising measures including taxes, charges and fees. See I-695, Section 2. The narrow, focused approach to the ballot title itself shows that I-695 contains more than one subject.
Even if the Court viewed the ballot title for I-695 as general in scope, there is no rational unity between lowering license tab fees and revamping the processes of government.9 One could argue that lowering license tab fees to $30 would also require prohibiting the government from simply raising other taxes to make up the difference. However, I-695 goes far beyond a simple offset approach and requires that each and every revenue measure go to a vote of the public.
Additionally, I-695 violates the single subject rule of Article II, Section 19 in that it is a classic example of logrolling. Logrolling is the prohibited act of including in an initiative something voters would approve of in order to get them to vote for something they would otherwise disapprove. Fritz, 83 Wn.2d at 333. The Fritz court observed the dangers of logrolling and emphasized that this danger is particularly present with initiatives:
Logrolling is an even greater danger to the democratic exercise of power in the initiative process. What is to prevent an individual or a group from including mildly objectionable legislation - that is, legislation that might benefit a small group and is mildly disfavored by the electorate as a whole - in an initiative measure that includes other legislation that has greater popular appeal?
Fritz, 83 Wn.2d at 333. See also Washington Fed'n of State Employees, 127 Wn.2d at 552 and 556 (Talmadge, J., concurring in part/dissenting in part) (identifying the dangers of logrolling).
Here the carrot offered to the voters was a $30 auto license tab, a savings of hundreds of dollars per vehicle for most voters. In return, voters were asked to go along with a major change in governmental structure and immediate reduction in funding for long-established programs, many of which effect public health and safety. In fact, the name of the sponsoring committee, "$30 License Tab Initiative Campaign," makes it clear that the intent was to focus voter attention on the reduction in license fees.10 This is classic logrolling - a violation of Article II, Section 19.
Further, Article II, Section 19 also mandates that the ballot title reflect the initiative's subject. Patrice, 136 Wn.2d at 852. Here too, I-695 violates this clause of the Constitution. The ballot title makes no reference to the fact that I-695 would destroy the funding base for numerous governmental programs.
As stated above, the ballot title for I-695 does not disclose the fact that one of the major impacts of the initiative would be to repeal all funding from the MVET for police and fire protection, criminal justice, and other essential programs. Again, the wording of the ballot title is key to informing voters of the true intent and impact of an initiative. As the Court observed in Ballot Title for Initiative 333, 88 Wn.2d 192, 198, 558 P.2d 248 (1997), the ballot title may be the key source of education on the nature of the initiative:
We can safely assume that not all voters will read the text of the initiative or the explanatory statement. Some voters may cast their votes based on the ballot title as it appears on their ballots. Thus, the outcome of the vote may be affected by the tenor of the ballot.
Ballot Title, 88 Wn.2d at 198; see also Washington Fed'n of State Employees, 127 Wn.2d at 554 (quoting Ballot Title); Charboneau's, 27 Wn. App. at 9.
The ballot title for I-695 makes no mention of the fact that the initiative strips numerous key programs of their funding source by repealing the MVET. Moreover, the explanatory statement prepared by the Attorney General for the initiative pursuant to RCW 29.81.020 makes no mention that the initiative will repeal funding for various government programs.11
In its summary of the law as it existed, the Attorney General's statement informs the voter:
The revenue from the state motor vehicle excise tax is distributed according to a formula written into the law. The transportation fund, used for public transportation and highway purposes, receives over 51% of the revenue. The motor vehicle fund, used for highway purposes, receives over 25% of the revenue. Other funds that receive percentages of the motor vehicle excise tax revenue include [a list of the various other government programs].
Appendix E at 5. In the explanatory statement's conclusion, the Attorney General specifically describes for the voter the legal effect of I-695, beginning with "[t]he effect of Initiative Measure 695, if approved into law:..."12 Id. at 11. This description fails to inform voters that I-695 will repeal the funding source for programs funded by the motor vehicle excise tax described earlier in the explanatory statement.13 Thus, neither the official ballot title for I-695 nor the Attorney General's explanatory statement inform voters of I-695's impact on the funding of programs important to the health, safety and welfare of the Cities' citizens. For this reason alone, I-695 violates Article II, Section 19 of the Constitution.
I-695 eliminates MVET funding for programs which address the fundamental purposes of local government; police and fire protection, criminal justice, and planning for public health and sanitation projects. The statutes providing for the funding of these programs by the MVET are set out in Appendix A. In addition, I-695 has eliminated MVET funding for the State ferry system, which has a direct, adverse impact on the citizens of Bainbridge Island and Bremerton. See RCW 82.44.110 and 82.44.150.
In addition to the failure of the official ballot title and explanatory statement to address the adverse impact of I-695 on program funding, the wording of the initiative itself is deceptive. As discussed above, two of the fundamental purposes for Article II, Section 19 are to ensure that voters are fully informed about the initiative and to prevent surprise or fraud. A ballot title should indicate to voters the scope of the measure or at least lead an inquiring voter to the body of the initiative itself. Washington Toll Bridge Authority, 32 Wn.2d at 26. The courts interpret an initiative as the average informed voter would read it. Turner, 106 Wn.2d 649. It is apparent that I-695 was drafted to conceal from even an inquiring voter that the initiative would delete funding for numerous programs.14
In addition to setting a $30 vehicle license fee and requiring all "tax increases" to go to a vote, I-695 was structured in a way to remove the funding source for programs vital to the health, safety and welfare of the Cities' citizens. Section 3 of the Initiative states: "The following acts or parts of acts that impose taxes and fees on vehicles are each repealed:..." The section then goes on to string-cite 44 sections of the RCW, with no indication of the real meaning of each section. The qualifying language clearly implies that each of the cited statutes imposed taxes and fees on vehicles. In fact, most of these do not.15 I-695's wording flies directly in the face of the fundamental tenets behind Article II, Section 19.
I-695 does not simply replace a value based vehicle license fee with a flat $30 rate. In Section 3, the initiative repeals RCW 82.44.020, the MVET, and the schedule for valuation of vehicles, RCW 82.44.041. The MVET was the funding source for the majority of the programs listed in Section 3. Rather than simply replacing the value based system in RCW 82.44.041 with the flat $30 rate, I-695 repeals that entire section and inserts the flat fee provision as a new section of a different chapter, 46.16 RCW, joining vanity plate fees.16
It is estimated that the new $30 license fee will initially generate about $13 million in annual revenue.17 Because of how the initiative was drafted, none of these revenues are now available to support the programs previously funded by the MVET. An inquiring voter could perhaps deduce that a reduction in license fee revenues would reduce available funding for highway and other related programs, but the average voter cannot be expected to track this statutory sleight of hand. It even apparently escaped the notice of the Attorney General in drafting the ballot title that I-695 would obliterate the source of funding for many government programs.
Initiative 695 violates a fundamental purpose of Article II, Section 19, that the basic purpose of the ballot title, the official statement, and the text of the initiative itself is to inform the average voter of the true impact of the initiative. Initiative I-695 is, therefore, unconstitutional.
III. I-695 Is Unconstitutional Because It Conflicts With Numerous "Substantive" Sections of the Washington Constitution.
I-695 cannot amend the Washington Constitution. It was not passed as a constitutional amendment. Nonetheless, I-695 attempts to alter the constitutional structure of state government. Prior decisions on initiatives are clear - an initiative cannot alter the processes and structure of government. In addition, I-695 directly conflicts with at least six articles of the Washington Constitution. Each of these constitutional flaws is independently sufficient to render I-695 void.
A. I-695 Cannot Amend the Constitution.
Article XXIII of the Washington State Constitution sets forth the procedure for amending the Constitution:
Any amendment or amendments to this Constitution may be proposed in either branch of the legislature; and if the same shall be agreed to by two-thirds of the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their journals, with the ayes and noes thereon, and be submitted to the qualified electors of the state for their approval, at the next general election; and if the people approve and ratify such amendment or amendments, by a majority of the electors voting thereon, the same shall become part of this Constitution, and proclamation thereof shall be made by the governor: Provided, That if more than one amendment be submitted, they shall be submitted in such a manner that the people may vote for or against such amendments separately. The legislature shall also cause notice of the amendments that are to be submitted to the people to be published at least four times during the four weeks next preceding the election in every legal newspaper in the state: Provided, That failure of any newspaper to publish this notice shall not be interpreted as affecting the outcome of the election.
The Constitution is clear, a constitutional amendment requires a two-thirds vote by both houses and ratification by a majority of citizens. This process is "manifestly distinct" from the regular law-making process. Ford v. Logan, 79 Wn.2d 147, 155, 483 P.2d 1247, 1251 (1971) (holding that an initiative cannot repeal a county's home rule charter because of the "organic" nature of the charter).
The Washington courts have repeatedly and consistently held that the people cannot repeal or amend the Constitution via initiative:
We find nothing in the provisions of Const. art. 2, § 1 (amendment 7) which places within the legislative authority the power to amend or repeal the very organic law which allocates that authority. To the contrary, our constitutional provisions for amendment are direct and apart from Article II, relating to the legislative authority.
Ford, 79 Wn.2d at 155; see also Gerberding v. Munro, 134 Wn.2d 188, 210, P.2d 1366 (1998) (an initiative cannot amend a constitutional provision); Yelle, 83 Wn.2d at 472 ("[t]he people in their legislative capacity are not . . . superior to the written and fixed constitution") (citing Culliton v. Chase, 174 Wash. 363, 25 P.2d 81 (1933) (en banc)); Belas v. Kiga, 135 Wn.2d 913, 919, 959 P.2d 1037 (1998) ("the people in their legislative capacity remain subject to the mandates of the Constitution" and "Constitutional provisions cannot be restricted by legislative enactments").
This strict limitation on the initiative process preserves the fundamental safeguards in Article XXIII designed to protect the integrity and stability of our Constitution:
[Article XXIII] safeguards are not to be rightly cast aside in an understandable zeal for the right of the people to act directly on matters of common legislation. Amendment of our Constitution is not a legislative act and thus is not within the initiative power reserved to the voters. It necessarily follows that that which cannot be amended by legislation cannot be abolished thereby. By its nature, then, the initiative power set forth in Const. Art. 2 does not include the power to directly amend or repeal the Constitution itself.
Ford, 79 Wn.2d at 156.
The Washington courts have consistently struck down initiatives and referenda that conflict with a constitutional provision. A recent example is the Washington Supreme Court's unanimous decision in Belas, supra. Belas addressed the constitutionality of a referendum which changed the method of assessing real property taxes. The challenged referendum mandated a "value averaging" formula for assessing the value of rapidly appreciating real property. The referendum limited increases in real property assessments to a certain percentage of the increase of market value in any given year. The Court began its analysis by emphasizing that a "referendum or an initiative measure is an exercise of the unreserved power of the people to legislate, and the people in their legislative capacity remain subject to the mandates of the Constitution." Id. at 920, citing Gerberding, 134 Wn.2d at 196. The Court concluded that the referendum contradicted the requirement under Article VII, Section 1 of the State Constitution that all property within the same "class" be taxed uniformly.
Likewise, in Gerberding, supra, the Washington Supreme Court found Initiative 573 invalid because it conflicted with Article II, Section 25 of the Constitution. The initiative sought to impose term limits on elected officials. Once again, the Court explicitly rejected the claim that an initiative can amend the Constitution. Id. at 210. The Court found that the term limits constituted a "qualification" for office, a subject already addressed in Article III, Section 25. The Court concluded that "term limits constitute impermissible qualifications beyond those expressed in our state Constitution[.]" Id. at 201. Thus, the Court held that an initiative cannot add additional requirements to constitutionally mandated requirements.
Culliton, supra, is another example of the Court's application of this principle. In Culliton, the Court considered the constitutionality of an initiative which attempted to enact a progressive income tax. The Court first emphasized that a law enacted by initiative cannot conflict with any constitutional provision. The Court then concluded that the initiative conflicted with the Fourteenth Amendment to the State Constitution (Article VII, Section 1), which requires that "[a]ll taxes shall be uniform upon the same class of property." Culliton, 174 Wash. at 363, 378.
In Gilman v. Tax Comm'n, 32 Wn.2d 480, 202 P.2d 443 (1949) (en banc), the Court addressed a constitutional challenge to an initiative which required the state to pay Washington residents serving in the armed forces a certain sum each month. The initiative required the state to raise the money by issuing and selling $100 million in bonds. The court held that the initiative demanded indebtedness in excess of the constitutional limits in Article VIII, which limits indebtedness to $400,000 with certain exceptions, including indebtedness "to repel invasion, suppress insurrection or defend the state in war[.]" Article VII, Section 2. The court concluded that the payments did not fall within this exception and declared the initiative unconstitutional.
Each of these cases stands for the clear and uncontroverted principle that an initiative cannot amend the Constitution and that an initiative that conflicts with or contradicts the Constitution is void. Each of these cases held an initiative unconstitutional because it conflicted with a constitutional provision. As the Supreme Court's recent decisions in Belas and Gerberding show, the courts are both required and well-prepared to invalidate initiatives which conflict with the State Constitution. Gerberding shows that an initiative conflicts with the Constitution if it attempts to add requirements to a process of requirements already contained in the Constitution.
I-695 conflicts with the Constitution even more seriously than the initiatives in any of the preceding cases - it directly conflicts with at least five sections of the Washington State Constitution.
1. An Initiative Cannot Change the Structure of Government.
As a preliminary issue, uncontroverted Washington case law holds that an initiative cannot make changes to the structure by which government operates. In Ford, supra, the Court held that an initiative could not repeal the King County charter because it would amount to a change in the structure of government, a power beyond the scope of the initiative process. Ford, 79 Wn.2d at 154.18
In its unanimous decision in Philadelphia II v. Gregoire, 128 Wn.2d 707, 911 P.2d 389 (1996), cert. denied sub nom. Gravel v. Gregoire, 519 U.S. 862 (1996), the Court relied on Ford to invalidate an initiative attempting to establish "direct democracy" on a national level via individual state initiatives. Like I-695, the initiative in Philadelphia II set forth new procedures for the law-making process. Id. at 710-11. The Philadelphia II court labeled such changes to the law-making process "administrative." The Court relied on Ford and invalidated the "direct democracy" initiative, stating that "the initiative process is limited to acts that are legislative in nature" and "[w]e have affirmed Ford's reasoning numerous times in distinguishing initiatives proposing legislative acts from those proposing administrative acts." Id. at 718, citing Ford, 79 Wn.2d at 154; see also Heider v. Seattle, 100 Wn.2d 874, 675 P.2d 597 (1984) (holding that initiatives cannot implement administrative changes); Ruano, 81 Wn.2d at 823 (initiative which seeks "merely to carry out and execute law" is invalid because of its administrative nature).
I-695 has the same problem as the initiatives in Philadelphia II and Ford.
It attempts to implement a new method for government to execute laws by
requiring a vote on all new revenue measures and "tax" increases. It
attempts to tamper with the "nuts and bolts" of the law-making
machinery by adding a new step to the legislative process - a "general
election." Even if the law-making process were not constitutionally
proscribed (which, of course, it is), I-695 is invalid
because it attempts to do something an initiative simply cannot do: change the
structure of government.
Washington's prohibition against initiatives that change government structure finds strong support in the academic literature. Commentators agree that "a court should consider both the probability that a given [initiative] will work a substantial change in the structure of government and the magnitude of that change. When . . . the initiative is highly likely to lead to fundamental change, the court should err on the side of requiring a deliberative process [for constitutional amendments]." Recent Case, 105 Harv. L. Rev. 953 (1992). The courts must not uphold an initiative that will "substantially alter the basic governmental framework set forth in our Constitution" because "comprehensive changes to the state's governmental structure require more formality, discussion and deliberation than is available through the initiative process." Julia Anne Guizan, Notes and Comment: Is the California Civil Rights Initiative a Wolf in Sheep's Clothing?: Distinguishing Constitutional Amendment from Revision in California's Initiative Process, 31 Loy. L.A. L. Rev. 261, 264, 2721 (1997), citing and quoting Legislature v. Eu, 816 P.2d 1309, 1316, 1319 (Cal. 1991). Likewise, the Honorable Hans A. Linde warns of the particular dangers of initiatives which alter the structure of government in a manner that restricts the Legislature's ability to enact a comprehensive fiscal policy, described as "the procedural destruction of state fiscal policy by initiative measures." Hans A. Linde, Voices of the People: Essays on Constitutional Democracy in Memory of Professor Julian N. Evle: Practicing Theory: The Forgotten Law of Initiative Lawmaking, 45 UCLA L. Rev. 1735, 1756 (1998).
2. I-695 Is Unconstitutional Because It Conflicts with Article VII, Section 1.
Article VII, Section 1 of the Washington State Constitution explicitly forbids the suspension and surrender of the legislature's taxing authority:
The power of taxation shall never be suspended, surrendered or contracted away. All taxes shall be uniform upon the same class of property within the territorial limits of the authority levying the tax and shall be levied and collected for public purposes only. The word "property" as used herein shall mean and include everything, whether tangible or intangible, subject to ownership. All real estate shall constitute one class: Provided, That the legislature may tax mines and mineral resources and lands devoted to reforestation by either a yield tax or an ad valorem tax at such rate as it may fix, or by both. Such property as the legislature may by general laws provide shall be exempt from taxation. Property of the United States and of the state, counties, school districts and other municipal corporations, and credits secured by property actually taxed in this state, not exceeding in value the value of such property, shall be exempt from taxation. The legislature shall have power, by appropriate legislation, to exempt personal property to the amount of three thousand ($3,000.00) dollars for each head of a family liable to assessment and taxation under the provisions of the laws of this state of which the individual is the actual bona fide owner.
Article VII, Section 1 has been the undoing of at least two other initiatives. See Belas, 135 Wn.2d at 929 (value averaging formula for assessing property values for taxation "created by Referendum 47 violates the uniformity clause of Article VII, Section 1 of our State Constitution"); Culliton, 174 Wash. at 378 (initiative enacting a progressive income tax is invalid because it violates the requirement of uniformity of all taxes on property of the same class).
Section 2 of I-695 requires the Legislature to suspend and surrender its power to tax by prohibiting any tax legislation pending a general election. The courts construe the terms "suspend" and "surrender" according to their plain language. In the context of Article VII, Section 1, the "word `suspended' is defined as temporarily inactive or inoperative -- that is, held in abeyance." Gruen v. State Tax Comm'n, 35 Wn.2d 1, 53, 211 P.2d 651 (1949), overruled in part on other grounds; State ex rel. Washington State Finance Committee v. Martin, 62 Wn.2d 645, 663, 384 P.2d 883 (1963). Likewise, "`surrender' means to yield, render, or deliver up (Nolander v. Burns, 48 Minn. 13, 50 N.W. 1016); to give up completely, resign, to relinquish (Webster's International Dictionary (2d ed.))". Id.
Although a Washington court has never addressed this exact issue, the Supreme Court of Maine addressed a markedly similar question in Boston Milk Producers, Inc. v. Halperin, 446 A.2d 33 (Maine 1982).19 Boston Milk involved the constitutionality of state legislation providing for a tax on milk. The legislation provided that the act would not take effect until it was endorsed by a majority of milk producers. Plaintiffs challenged the tax under Article IX, Section 9 of the Maine Constitution, which is substantially similar to Washington's Article VII, Section 1.20 The Maine court noted the broad language of the constitution "creates a strong and sweeping prohibition." Id. at 40. The court concluded that the fact that the "rate could not come into effect without the favorable vote" surrendered the legislature's exclusive taxing power. Id. at 41.
I-695 directly conflicts with Article VII, Section 1. Article VII is clear -- the legislature, either by legislative act or popular initiative,21 cannot suspend or surrender the state's power to levy taxes. The language of I-695 is explicit that is exactly what it intends to do: "Any tax increase imposed by the state shall require voter approval." I-695, § 2. Under this scenario, the legislature's power to tax is suspended pending popular election. I-695 unconstitutionally forces the legislature to surrender ultimate control over issues of taxation.
3. I-695 Is Unconstitutional Because It Conflicts Under Article II, Section 22.
Article II, Section 22 addresses the legislature's power to enact laws by majority vote. This provision, titled "Passage of Bills," states as follows:
No bill shall become a law unless on its final passage the vote is taken by yeas and nays, the names of the members voting for and against the same be entered on the journal of each house, and by a majority of the members elected to each house be recorded thereon as voting in its favor.
With respect to Article II, Section 22, I-695 presents an irrEconcilable constitutional flaw like that in Gerberding, supra, in that it attempts to add requirements to an already constitutionally proscribed process by requiring a vote on all new and increased revenue measures. In Gerberding, the Court held that an initiative cannot impose additional requirements on the qualifications for state officers beyond those set out in the Washington Constitution. Id. at 210. The Court concluded that the constitutional mandates could not be "altered by the particular politics of the moment." Id. at 210. Here, as in Gerberding, the initiative attempts to place additional requirements on the constitutionally mandated requirement, i.e., that tax bills become law upon final passing of the legislature's vote. As the Court held in Gerberding, I-695 conflicts with a constitutionally imposed process. See also Philadelphia II, 128 Wn.2d at 718 (an initiative cannot change governmental law-making process because such a change would be a prohibited "administrative" act); Ford, 79 Wn.2d at 155 (initiative process cannot "amend or repeal the very organic law which allocates that authority" and thereby change the fundamental processes and structure of government).
Article II, Section 22 is an exclusive provision. In Gerberding, supra, the Court found that Article II, Section 7 and Article III, Section 25 were exclusive because the constitutional framers considered and rejected additional requirements at the time they drafted the provisions. The Court found that this was evidence that "Washington's constitutional framers believed qualifications for state constitutional officers were a matter of constitutional, not statutory, concern." Id. at 203. The fact that the framers considered but rejected additional limitations evidenced their intent to have the constitution be the exclusive source of authority on this subject. Id.
Article II, Section 22 is also exclusive. First, there can be no legitimate question that the framers believed that the procedures by which the legislature enacted laws "were a matter of constitutional, not statutory, concern." SEcond, the framers considered and rejected additional limitations and checks on the process enumerated in Article II, Section 22. Specifically, the framers considered and rejected a motion to prevent bills from being introduced in the last ten days of the session. Rosinow, Beverly P., ed. The Journal of the Washington State Constitutional Convention 1889, (1962) at 536. Likewise, the framers considered and rejected a bill to allow a majority of the members present to pass a bill. Id. Under the Gerberding analysis, this legislative history shows that the framers rejected any attempts to make the passage of bills either easier or more difficult. There is no question that the legislature could not pass a law limiting its ability to create laws under Article II, Section 22. Yet that is exactly what I-695 does - it creates an extra-constitutional obstacle to the law-making process. For that reason, it is unconstitutional.
4. I-695 Is Unconstitutional Because It Conflicts With Article II, Section I of the Constitution.
Article II, Section 1 addresses the initiative and referendum process under the Washington Constitution.22 The initiative process cannot change the constitutionally proscribed processes and structure of initiatives and referenda in this state:
We find nothing in the provisions of Const. Article 2, § 1 (amendment 7) which places within the legislative authority the power to amend or repeal the very organic law which allocates that authority. To the contrary, our constitutional provisions for amendment are distinct and apart from Article 2, relating to the legislative authority.
Ford, 79 Wn.2d at 155.
If the people of the state of Washington do not like a law enacted by the legislature (be it a tax law or something else), Article II provides a powerful, clear, historical and well-tested method for placing a popular check on the law. This is a constitutionally mandated and protected process. It contains numerous procedural checks to maintain the integrity of the process and to protect the people from deceptive or incompetent ballot measures.
I-695 seeks to circumvent and bypass this constitutionally mandated process for all revenue measures by requiring an extra-constitutional general election on all proposed tax bills in direct conflict with Article II, Section 1 safeguards. It is established beyond any contention that an initiative cannot create an exception to a constitutionally mandated process. See, e.g., Belas, 135 Wn.2d at 919 ("the people in their legislative capacity remain subject to the mandates of the Constitution"); Ford, 79 Wn.2d at 156 ("safeguards are not to be lightly cast aside in an understandable zeal for the right of the people to act directly on matters of common legislation"); Philadelphia II, 128 Wn.2d at 718 (initiatives cannot make structural changes to government).
Nothing prevents the proponents of I-695 from obtaining the relief they seek: popular oversight on tax legislation. In fact, our Constitution invites this type of oversight. I-695 cannot, however, bypass the procedural checks and safeguards on popular legislation mandated by our Constitution without amending Article II, Section 1.23
5. I-695 Is Unconstitutional Because It Conflicts with Article XI, Section 12 of the Constitution.
The Washington Constitution forbids state oversight of municipal taxing authority. Article XI, Section 12 addresses the assessment and collection of taxes in municipalities. This provision states as follows:
The legislature shall have no power to impose taxes upon counties, cities, towns or other municipal corporations, or upon the inhabitants or property thereof, for county, city, town, or other municipal purposes, but may, by general laws, vest in the corporate authorities thereof, the power to assess and collect taxes for such purposes.
Our Supreme Court "has interpreted Article XI, Section 12 as limiting imposition of taxes by the Legislature, but permitting imposition of taxes by a municipal corporation through its corporate authorities." Granite Falls Library Capital Facility Area v. Taxpayers of Granite Falls, 134 Wn.2d 825, 837, 953 P.2d 1150 (1998), citing Northern Pac. Ry. Co. v. Pierce County, 51 Wash. 12, 97 P. 1099 (1908). Once the electorate establishes a regional municipal corporation, "it acquiesces in the imposition of the tax which is necessary to carry out the purposes of the act." Metropolitan Seattle v. Seattle, 57 Wn.2d 446, 453, 357 P.2d 863 (1960) (holding that a tax is constitutional under Article XI, § 12 so long as it is imposed by the municipality and not the legislature). In order to be a valid initiative, I-695 must "enact a law that is within the state's power to enact." Philadelphia II, 128 Wn.2d at 719.
In Clark v. Seiber, 48 Wn.2d 783, 296 P.2d 680 (1956) (en banc), the Court struck down state legislation which required tax levies for local school districts to be determined by the state board of equalization. The Court emphasized that "as long as the state chooses to permit schools to be operated on a district basis as are other municipal corporations, the provisions of Article XI, § 12 of the constitution apply thereto." Id. at 790. The Court therefore declared the legislation unconstitutional under Article XI, Section 12 because it mandated state oversight on local taxation.
I-695 conflicts even more fundamentally with Article XI, Section 12 than the legislation at issue in Clark. Clark held a statute unconstitutional because it placed oversight on a municipality's power to tax related to school districts, a subject that "the state has the power, if the legislature should see fit to exercise it, to abolish school districts and operate the schools of the state as a state function divorced from all local control." Clark, 48 Wn.2d at 790. Here, I-695 attempts to place state oversight on municipal taxes for services which fall into the province of local control pursuant to the very terms of the constitution.24
Article XI, Section 1 and the case law interpreting it are clear: once a municipality is granted the power to levy taxes for local services by its charter, the state cannot tax or impose restrictive oversight on that power. It does not and should not make any difference whether the attempted oversight is enacted by statute or initiative -- both are held to the same constitutional scrutiny.25
Likewise, the cities' power to levy taxes for local services are granted via their organic charters.26 In Ford, 79 Wn.2d 147, the Court held that the people cannot revoke a municipality's charter through initiative:
By reason of the inherent limitation on the power of initiative, and by reason of the fact that `home rule' charters are subject to the constitution, we hold that `home rule' charters cannot be repealed by initiative. To hold otherwise would be to say that the initiative power at the local level is broader than, and inconsistent with, the initiative power reserved under our constitution. That result is precluded by the `subject to' clause of Const. Article 11, § 4, (amendment 21).
Id. at 1252-53.
6. I-695 is Unconstitutional Because it Conflicts with Article VIII, Section 1(f).
Article VIII, Section 1(f) addresses the state's ability to pledge its full faith, credit and taxing power to guarantee the payment of any obligation. This provision states as follows:
Notwithstanding the limitation contained in subsection (b) of this section, the state may pledge its full faith, credit, and taxing power to guarantee the payment of any obligation payable from revenues received from any of the following sources: (1) Fees collected by the state as license fees for motor vehicles; (2) Excise taxes collected by the state on the sale, distribution or use of motor vehicle fuel; and (3) Interest on the permanent common school fund: Provided, That the legislature shall, at all times, provide sufficient revenues from such sources to pay the principal and interest due on all obligations for which said source of revenue is pledged.
I-695 is completely incompatible with this constitutional provision. The Constitution explicitly grants the state the authority to pledge its taxing power to guarantee the payment of its obligations. The state may pledge its taxing power. I-695 would simply obliterate that ability by rendering the taxing power outside the control of the state and municipalities by requiring a vote on all tax increases.
7. I-695 Is Unconstitutional Because It Conflicts With Article I, Section 23.
Article I, Section 23 addresses laws which interfere with existing contracts. It states as follows:
No bill of attainder, ex post-facto law, or law impairing the obligations of contracts shall ever be passed.
Article I, Section 23 applies to "any form of legislative action, including . . . direct action by the people." Washington Fed'n of Employees, 127 Wn.2d at 560, quoting Ruano, 81 Wn.2d 820, 825, 505 P.2d 447 (1973), ("[w]hen a state interferes with its own contracts, those impairments face more stringent examination under the contract clause than would laws regulating contractual relationships between private parties"). Washington Fed'n of Employees, 127 Wn.2d at 561, quoting Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 244 n. 15 (1978).
The Washington courts employ a three-part test to determine if there has been an impairment of a public contract: (1) does a contractual relationship exist, (2) does the legislation substantially impair the contractual relationship, and (3) if there is a substantial impairment, is it reasonable and necessary to serve a legitimate public purpose. Washington Fed'n of Employees, 127 Wn.2d at 561; Tyrpak v. Daniels, 124 Wn.2d 146, 151-52, 874 P.2d 1374 (1994). "A contract is impaired by a statute which alters its terms, imposes new conditions or lessens its value." Washington Fed'n of Employees, 127 Wn.2d at 563, quoting Caritas, 123 Wn.2d at 404. "Impairment may be substantial if the complaining party relied on the supplanted portions of the contract." Washington Fed'n of Employees, 127 Wn.2d at 563, quoting Caritas, 123 Wn.2d at 405.
In Washington Fed'n of Employees, supra, the Court addressed a constitutional challenge to Initiative 134, a campaign reform measure which repealed RCW 41.04.230(7), a statute authorizing state employees to have voluntary payroll deductions contributed to registered political committee. The plaintiffs argued that the initiative violated Article I, Section 23 because the payroll deductions were an essential element of the collective bargaining agreement and employment relationship between the state and its employees. The Court agreed and found that the initiative violated the contractual impairment clause.
In Ruano, supra, the Court addressed a challenge to an initiative that would have adversely impacted a special excise tax that a municipality had committed to the repayment of bonds to finance a stadium. Although the initiative did not directly remove the tax, the Court found that it created "substantial doubt" as to the tax's validity:
The situation is analogous to an effort by the legislature to repeal the authority to levy this tax. That such effort would be futile and in violation of the constitution is the holding of Von Hoffman v. Quincy, 71 U.S. (4 Wall.) 535, 18 L. Ed. 403 (1866), wherein the United States Supreme Court said:
It is equally clear that where a state has authorized a municipal corporation to contract and to exercise the power of local taxation to the extent necessary to meet its engagements, the power thus given cannot be withdrawn until the contract is satisfied.
Ruano, 81 Wn.2d at 826-27.
Likewise, in Continental Ill. Nat'l Bank & Trust Co. v. State of Washington, 696 F.2d 692 (9th Cir.), appeal dismissed, 460 U.S. 1077 (1983), the court struck down an initiative that would have altered a municipal corporation's ability to perform existing contracts. The initiative required cost effectiveness studies and limited the issuance of bonds for public energy projects by the Washington Public Power Supply System:
Once having granted certain powers to a municipal corporation, which in turn enters into binding contracts with third parties who have relied on the existence of those powers, the legislature . . . is not free to alter the corporation's ability to perform.
Continental Ill., 696 F.2d at 700.
The Continental Ill. decision was cited with approval in Tyrpack v. Daniels, supra. In Tyrpak, the Court held that both the United States and Washington constitutions forbade the enactment of laws that impair the obligations of contracts and that the federal and state provisions are co-extensive and should be given the same effect. Id. at 151, citing U.S. Const., Article 1, § 10 and Wash. Const., Article I, Section 23. Interference with a contract involving a municipal corporation is a "public" contract, which is entitled to a more stringent examination under the federal and state anti-impairment clauses than private party contracts. Id. at 151-52. The Court found an unconstitutional impairment related to legislation which authorized one Port district (Port of Camas-Washougal) to annex part of another district (Port of Vancouver). The Port of Vancouver challenged the legislation, claiming that the loss of $3,800 in annual tax revenues generated by the annexed property impaired its general obligation bonds. The Court determined that the Port of Vancouver collected more than enough taxes to meet its bond obligations, with or without the loss of the annexed property.
However, the Court stated that the relevant question is whether the legislation detrimentally affects the financial framework that induced the bondholders originally to purchase the bonds. Id. at 153-54. The Court found that the reduction of the Port's revenues, while not preventing repayment of the bonds, was a substantial impairment because it reduced the security afforded by the excess taxes collected:
Although this proposed annexation will not cause the Port of Vancouver's tax base to fall below the minimum necessary for repayment, the excess taxes collected by the Port of Vancouver, over and above those necessary to meet their bond obligations, form additional security against routine Economic fluctuations, making the bonds more financially attractive.
Id. at 154-55. The Court concluded that this "putatively minimal impairment of the tax base" was nevertheless a substantial impairment of the bond contracts. Id. at 155.
I-695 impairs the Cities' contracts in a manner much more directly than the impairment in cases like Ruano and Tyrpak. See Weed Affidavit. For example, the uncontroverted facts show that I-695 impairs the contract between Bainbridge Island and its bondholder related to its Limited Tax General Obligation ("LTGO") bonds. See Eells Affidavit; Horton Affidavit. Bainbridge Island's Financial Capacity Analysis for the year 2000 indicates that the City will need to substantially increase its taxes, fees and charges to meet the City's expenses, including its bond obligations. Id.
I-695's voter approval requirement directly impairs Bremerton's contract with its bondholders. If the voters do not approve a tax increase, Bremerton cannot satisfy its contractual obligations to its bondholders. This is a far more direct impairment than in Fed'n of Employees, supra, because there is no question that the effected obligation is an essential element of the contract. Likewise, under the test set forth in Tyrpak, I-695 detrimentally effects the financial framework that induced the bondholders to purchase a bond. No one can seriously dispute the fact that a municipalities' ability to levy new taxes to meet its bond obligations is among the biggest attraction of municipal bonds from the investor's standpoint.
It is uncontroverted that I-695 wreaks havoc on the Cities' existing bond obligations as well as their ability to sell bonds in the future.
IV. The Requirement of I-695 that the Voters Approve All Tax Increases Is Unconstitutionally Vague.
Section 2 of I-695 requires: "[a]ny tax increase imposed by the state shall require voter approval." The term "tax" is defined in Section 2 (2) as follows:
For the purposes of this section, "tax" includes, but is not necessarily limited to, sales and use taxes, property taxes, business and occupation taxes, excise taxes, fuel taxes, impact fees, license fees, permit fees, and any monetary charge by government.
This definition of the term "tax" is ambiguous, and is so vague as to be unenforceable.
A statute subject to more than one reasonable interpretation is ambiguous. In re Sehome Park Care Ctr., 127 Wn.2d 774, 778, 903 P.2d 443 (1995). This same rule applies to initiatives. Senate Republican Campaign Comm., 133 Wn.2d at 241. As discussed below, the term "tax" as used in I-695 is ambiguous. The courts read an ambiguous initiative as the average voter would read it. Id. at 243.
However, an initiative that is so ambiguous as to be vague violates the due process clauses of the federal and state constitutions.27 Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wn.2d 1, 11, 721 P.2d 1 (1986). "[A] statute may be void for vagueness if it is framed in terms so vague that persons of common intelligence must guess at its meaning and differ as to its application." Id. Such is the case here.
The Cities are in the untenable position of not knowing how to interpret the use of the term "tax" in I-695. Which of the many taxes, fees and charges that provide revenue to the Cities are subject to the voting requirement of Section 2 of the initiative? Every tax, fee and charge? Some, but not all? If so, which ones?
The Attorney General's Office itself has had great difficulty in determining the scope of the taxes covered under the initiative. In their AGO December Memorandum, Appendix D,28 assistant attorneys general were advised by the office's Solicitor General to counsel their clients as follows:
That for purposes of I-695, the term "tax" means a compulsory charge to raise revenue for the support of government. This meaning is consistent with I-695's definition of tax and, with the meaning that an average informed voter would ascribe to the term. Such charges would include taxes imposed by the state to derive general revenues, taxes earmarked for particular government purposes, charges imposed for regulatory purposes, and charges imposed to support traditional government functions.
Appendix D at 2.
This interpretation of "tax" was published after I-695 was challenged by the Cities (and other parties). Id. at 6, nt. 17. However, in October 1999, before the adoption of I-695, the Attorney General's Office had a much different view of the meaning of the term "tax." A team of six senior assistant attorneys general authored a comprehensive review of the legal issues raised by I-695 set out in a memorandum to the Solicitor General dated October 21, 1999 (hereafter AGO October Memo). This memorandum was published on the AGO website for public review.29 Appendix C.
The AGO October Memo concluded as follows:
In sum, we conclude that the provisions of I-695, which require voter approval for new or increased state and local taxes, fees, and charges, are sufficiently ambiguous that it will be very difficult for assistant attorneys general to provide definitive advice on the applicability of I-695 for various types of taxes, fees, and charges.
Id. at 9.
After reviewing the rules of statutory construction, the AGO October memo goes on to conclude that there are at least four possible meanings to "tax" as it is used in I-695. The first is that "tax" "includes every conceivable charge by government." The memorandum concludes, though, that there are important arguments why this could not be the intent of the voters. Id. at 8-9. The sEcond possible interpretation is that I-695 "applies to traditional taxes and regulatory fees, but not to `proprietary charges.'" Id. at 9-10. A third possible interpretation is that "tax" includes "only true taxes and license fees, but would exclude user fees and proprietary charges, and perhaps would exclude those taxes like workers' compensation taxes and unemployment compensation taxes." Id. at 10-11. Lastly, the memorandum looks to the
overarching intent of I-695: to prevent government from replacing lost motor vehicle excise tax revenues by raising other taxes. Under this interpretation, only those tax increases intended to replace lost revenues would be subject to voter approval.
Id. at 11. The AGO October Memo also wrestles with the question of who is to vote on new or increased taxes. The memorandum raises a number of interesting questions, but few answers. Id. at 11-12.
Given the range of possible interpretations to the term "tax" that even the Attorney General's Office sees as reasonable possibilities, how are the Cities to interpret the term? How could the average voter be expected to know what he or she was voting for when the Attorney General's Office identified and published before the election four different possible interpretations. The answer is that the voters were left to guess what they were voting for in Section 2 of the initiative. Sections 2 of I-695 is unconstitutionally vague and, therefore, void.
Should the Court find that Section 2 of I-695 is not so vague that voters were required to guess at its meaning, then the Cities are entitled to declaratory judgment on the scope and application of the term "tax." Summary judgment should be granted if there is no material fact in dispute and the moving party is entitled to judgment as a matter of law. Senate Republican Campaign Comm., 133 Wn.2d at 236.
In seeking declaratory relief, the Cities have alleged, in part, at Section 10.4 of their Complaint that: "[c]harges made by Cities for goods and proprietary services are not subject to I-695." The State, relying on its AGO December Memo, admits the following in its Answer at Section 10.4:
Defendant State of Washington admits that Section 2 of I-695 is not applicable to charges made by cities for goods and proprietary services.
Given the State's admission, the Cities are, at a minimum, entitled to a declaration that charges made by the Cities for goods and proprietary services are not subject to I-695.
CONCLUSION
I-695 suffers from incurable defects under the Washington Constitution. The initiative violates both "procedural" and "substantive" provisions of the Constitution. To protect Washington's citizens from the very dangers that the Washington Constitution was designed to prevent, I-695 must be found to be unconstitutional. In the alternative, I-695 must be interpreted by the Court to judicially cure many of its defects. The Cities respectfully request that the Court grant their motion for summary judgment.
DATED this 19th day of January, 2000.
LANE POWELL SPEARS LUBERSKY LLP
By
James L. Robart, WSBA No. 5333
John W. Hough, WSBA No. 3276
Gwendolyn Payton Klein, WSBA No. 26752
Attorneys for Plaintiffs
City of Bainbridge Island, City of Bremerton and City of Lakewood
APPENDIX A
Program Funding Eliminated by Repeal of MVET Which Directly Impacts The Cities:
82.44.110 Provides for the disposition of the revenue raised by the motor vehicle excise tax: 1.71 percent to department of licensing to defray administrative costs; 8.712 percent for Puget Sound capital construction; 4.351 percent to Puget Sound ferry operations; 6.286 percent to the city police and fire protection assistance account; 5.628 percent into the municipal sales and use tax equalization account; 1.71 percent into the county sales and use tax equalization account; 51.203 percent into the transportation fund for transportation purposes and activities (planning, development of capital projects, high capacity transportation systems, high occupancy vehicle lanes, or public transportation system contribution matches required by federal or transportation improvement board programs); 3.892 percent for county criminal justice assistance account; .778 percent for municipal criminal justice assistance account distributions under RCW 82.14.320; .778 percent for municipal criminal justice assistance account distributions under RCW 82.14.330; 3.153 percent for the county public health account; 10.422 percent into the motor vehicle fund; 1.377 percent into the distressed county assistance account.
82.44.150 Provides that the director of licensing shall notify the state treasurer of the amount of excise tax remitted during the prior quarter. Provides the computation for determining in a municipality's share of the motor vehicle excise tax.
82.44.155 Provides for ratable distribution of the motor vehicle excise tax on basis of population to the city police and fire protection assistance account for police and fire protection.
82.44.156 Funds distributed to cities or towns may be transferred to another unit of local government under a government service agreement.
82.44.160 Provides for annual distribution of motor vehicle excise tax monies to the municipal research council. The distribution comes from city police and fire protection account monies and from the municipal sales and use tax equalization tax account. Monies are to be used for studies and research in municipal government, publications, educational, conferences, and in furnishing technical, consultative, and field services to cities and towns in problems relating to planning, public health, municipal sanitation, fire protection, law enforcement, postwar improvements, public works, and in all matters relating to city and town government.
1 Article II, Section 41 requires a two-thirds majority vote of the legislature to amend an initiative within two years of its enactment.
2 See Washington Fed'n of State Employees, 127 Wn.2d at 566 et. seq. (Talmadge, J., concurring in part/dissenting in part) (the rational unity test used by the court in reviewing challenges to legislation based on Article II, § 19 has not been analyzed with any precision. One commentator concludes that the lack of structural safeguards in the initiative process should afford initiatives closer scrutiny. Julian N. Eule, Judicial Review of Direct Democracy, 99 Yale L.J. 1503 (1990). A commentator on the Washington initiative process finds that closer judicial scrutiny, rather than deference, is needed in reviewing initiatives, particularly ones which involve protected classes. Marc Slomin & James H. Lowey, Comment, Judicial Review of Laws Enacted By Popular Vote, 55 Wash. L. Rev. 175 (1979).
3 See text of I-695, attached as Appendix B.
4 Other revenue measures adversely impacted by I-695 include: utility tax, RCW 35.92.870; annual tax levy for reserve fund, RCW 35.21.080; admission tax, RCW 35.21.280; tax on ambulance service, RCW 35.21.768; LID assessments, RCW 35.43.280, and sidewalks, RCW 35.68.070.
5 Other proprietary services include the following: fees for solid waste collection, RCW 35.21.130; solid waste handling facilities, RCW 35.21.152; transportation rates, RCW 35.92.060; operating heating systems, RCW 35.97.030; admission to auditoriums, art museums and swimming pools, RCW 35.21.020.
6 See Washington Fed'n of State Employees, 127 Wn.2d at 553 (Fritz v. Gorton overrules prior inconsistent case law).
7 The memorandum was written after the Cities' lawsuit was filed. See Appendix D, at 6 n. 17. The Memo is by the Solicitor General and her staff and is addressed to all assistant attorneys general. It has been posted since about December 22, 1999 on the Attorney Generals Office's website: www.atg.wa.gov/.
8 State of Washington, Official Voters Pamphlet, General Election, November 2, 1999, p. 4. ("Official Voters Pamphlet"), attached as Appendix E.
9 The courts have not provided a clear articulation of the "rational unity" test to apply here. The courts have used this test to both uphold and invalidate legislation and initiatives. See Washington Fed'n of State Employees, 127 Wn.2d at 566, et seq. (Talmadge, J., concurring in part/dissenting in part) (the rational unity test used by the Court in reviewing challenges to legislation based on Article II, § 19 has not been analyzed with any precision) and discussion at n. 2 herein.
10 Even if the argument was the other way around, a "vote for all taxes" provision had to be added to the initiative to get people to vote for the $30 license tab, the defect is the same.
11 Courts may rely on the official explanation in the voters' pamphlet if the ballot title is not clear. See, e.g., Estate of Turner v. Dept. of Revenue, 106 Wn.2d 649, 654, 724 P.2d 1013 (1986).
13 The State admits in its Answer to the Cities' complaint that I-695 "repeals various provisions of law relating to the MVET and that some of the MVET revenues were applied for some public safety and transportation purposes...," § 4.3; and that "I-695 likely will impact the Cities' revenues and provision of services to some extent...," but denies the alleged extent of impact, § 4.4.
14 At the minimum, the standard for violating the state's Consumer Protection Act, the capacity to deceive a consumer, rather than an actual deception, should be the standard for determining whether an initiative deceives a voter. See Nelson v. National Fund Raising Consultants, Inc. 120 Wn.2d, 382, 392, 842 P.2d 473 (1992) ("the necessary showing is that a given act or practice has a capacity to deceive").
15 See, e.g., RCW 82.44.015 (providing a tax exemption from motor vehicle excise tax for ride sharing passenger motor vehicles); 82.44.022 (establishing a credit against the motor vehicle excise tax for personal-use vehicles equal to the lesser of the tax or $30); 82.22.023 (exempting rental cars from the motor vehicle excise tax); 82.44.110 (providing for the disposition of the revenue raised by the motor vehicle excise tax to state and local government programs); 82.44.130 (providing that no motor vehicle shall be listed or assessed for ad valorem taxation "so long as this chapter remains in effect"); 82.44.155 (providing for ratable distribution of the motor vehicle excise tax on basis of population to the city police and fire protection assistance account for police and fire protection); 82.44.157 (funds distributed to cities or towns may be transfer to another unit of local government under a government service agreement); 82.44.160 (providing for annual distribution of motor vehicle excise tax monies to the municipal research council); 82.50.530 (providing that mobile homes, travel trailers, and campers, which are part of inventory and held for sale by a dealer, shall not be subject to ad valorem tax); and 82.50.540 (travel trailers and campers taxed and licensed under chapter 82.50 RCW shall be allowed to use public roads and highways, subject to motor vehicle laws).
17 Estimate of the state Dept. of Licensing provided by the Attorney General's Office.
18 Ford was signed by only three justices with two justices concurring in the results only. However, the Washington Supreme Court has subsequently cited Ford with approval numerous times. See, e.g., Philadelphia II v. Gregoire, 128 Wn.2d 707, 717-18, 911 P.2d 389 (1996) (refusing petitioners' request to overrule Ford and stating its holding "is sound and finds support among commentators and other jurisdictions") cert. denied sub nom. Gravel v. Gregoire, 519 U.S. 862 (1996); see also Spokane County ex. Rel. County Comm'rs v. State, 136 Wn.2d 644, 650, 966 P.2d 305 (1998); Gerberding, 134 Wn.2d at 210; Seattle Bldg. & Constr. Trades Council v. City of Seattle, 94 Wn.2d 740, 746, 620 P.2d 82 (1980); State ex rel. Keeler v. Port of Peninsula, 89 Wn.2d 764, 767, 575 P.2d 713 (1978); Ruano v. Spellman, 81 Wn.2d 820, 823, 505 P.2d 447 (1973); Durocher v. King County, 80 Wn.2d 139, 155, 492 P.2d 547 (1972); Leonard v. Bothell, 87 Wn.2d 847, 850, 557 P.2d 1306 (1976).
19 A copy of Boston Milk is attached
at the end of the brief for the Court's
convenience.
20 Article IX, Section 9 of the Maine Constitution states that "[t]he Legislature shall never, in any manner, suspend or surrender the power of taxation." The Maine Constitution was adopted in 1876, 13 years before Washington's adoption of Article VII, Section 1.
21 When addressing the constitutionality of initiatives and referenda, constitutional limitations on the legislature's power to act have the same prohibitive effect on the people's power to act via initiative because in this context, the term "legislature" includes the "whole constitutional lawmaking machinery of the state." Kramer, 83 Wn.2d at 473 (quoting State ex rel. Mullen v. Howell, 107 Wash. 167, 182-83, 181 P. 920 (1919)). In other words, if the legislature cannot undertake an act, the people cannot undertake the same act via initiative. Therefore, the initiative functions as a "surrender" just as if the legislature had enacted the same provision.
22 Article II, Section 1 states, in pertinent part:
The legislative authority of the state of Washington shall be vested in the legislature, consisting of a senate and house of representatives, which shall be called the legislature of the state of Washington, but the people reserve to themselves the power to propose bills, laws and to enact or reject the same at the polls, independent of the legislature, and also reserve power, at their own option, to approve or reject at the polls any act, item, section, or part of any bill, act, or law passed by the legislature.
(a) Initiative: The first power reserved by the people is the initiative. Every such petition shall include the full text of the measure so proposed. In the case of initiatives to the legislature and initiatives to the people, the number of valid signatures of legal voters required shall be equal to eight percent of the votes cast for the office of governor at the last gubernatorial election preceding the initial filing of the text of the initiative measure with the secretary of state.
Initiative petitions shall be filed with the secretary of state not less than four months before the election at which they are to be voted upon, or not less than ten days before any regular session of the legislature. If filed at least four months before the election at which they are to be voted upon, he shall submit the same to the vote of the people at the said election. If such petitions are filed not less than ten days before any regular session of the legislature, he shall certify the results within forty days of the filing. If certification is not complete by the date that the legislature convenes, he shall provisionally certify the measure pending final certification of the measure. Such initiative measures, whether certified or provisionally certified, shall take precedence over all other measures in the legislature except appropriation bills and shall be either enacted or rejected without change or amendment by the legislature before the end of such regular session. If any such initiative measures shall be enacted by the legislature it shall be subject to the referendum petition, or it may be enacted and referred by the legislature to the people for approval or rejection at the next regular election. If it is rejected or if no action is taken upon it by the legislature before the end of such regular session, the secretary of state shall submit it to the people for approval or rejection at the next ensuing regular general election. The legislature may reject any measure so proposed by initiative petition and propose a different one dealing with the same subject, and in such event both measures shall be submitted by the secretary of state to the people for approval or rejection at the next ensuing regular general election. When conflicting measures are submitted to the people, the ballots shall be so printed that a voter can express separately by making one cross (X) for each, two preferences, first, as between either measure and neither, and sEcondly, as between one and the other. If the majority of those voting on the first issue is for neither, both fail, but in that case the votes on the sEcond issue shall nevertheless be carefully counted and made public. If a majority voting on the first issue is for either, then the measure receiving a majority of the votes on the sEcond issue shall be law.
23 Defendant may argue that I-695's voter approval requirement is constitutionally proscribed under Article II, Section 1(b), which sets forth the referendum process for approval of any act, bill or law passed by the Legislature. This argument fails under the plain language of the Constitution. First, I-695 attempts to bypass the referendum petition process set forth in Article II, Section 1(b). Likewise, I-695's voter approval requirement would violate Article II, Section 1(b)'s prohibition of referenda on laws necessary for "support of the state government and its existing public instructions."
24 For example, Article XI, Section 11, states that "[a]ny county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."
25 It is also interesting to note that I-695's requirement that the voters approve all tax increases violates Article XI, Section 12 on two levels. The enactment of any state legislation interfering with local taxation is unconstitutional on its face. Moreover, I-695's plain language appears to require a statewide vote on each proposed local tax increase, another clear violation of Article XI, Section 1.
26 In the same way that I-695 seeks to amend the terms of the state constitution, it seeks to implicitly repeal the cities' charters. This is expressly forbidden by Ford. Under Article VIII of the Charter of the City of Bremerton, the "powers of initiative and referendum shall be exercised in the manner set forth in RCW 35.17.240 through 35.17.360." I-695 renders this article void in the event of tax increases.
27 U.S. Const., Amd. IV; Wash. Const. Art. I, § 3. The Cities have a direct interest in the limitation on their taxing authority and their ability to provide essential services to their citizens. See Seattle v. State, 103 Wn.2d 663, 668-669, 694 P.2d 641 (1985) (a city has standing to challenge under the due process clause the constitutionality of a statute within its zone of interest).
28 This memo has been adopted by the State as its position in this case. See State's Answer, § 10.4.
29 This memorandum of October 1, 1999 is located at www.atg.wa.gov/pubs/.