NPI's Cascadia Advocate

Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's unconventional perspective on world, national, and local politics.

Thursday, February 13th, 2020

State Supreme Court: Sound Transit’s motor vehicle excise tax (MVET) is constitutional

A law­suit backed by con artist Tim Eyman and Repub­li­can state leg­is­la­tors that sought to sab­o­tage Sound Tran­sit’s vot­er-approved Phase III sys­tem expan­sion plan end­ed in fail­ure this morn­ing when the Wash­ing­ton State Supreme Court upheld the statute grant­i­ng the agency the author­i­ty to levy motor vehi­cle excise tax­es for light rail, express bus, bus rapid tran­sit, and com­muter rail expan­sion.

The plain­tiffs in the case — a group of tax­pay­ers rep­re­sent­ed by right wing attor­neys Joel Ard and David DeWolf — had argued that Sound Tran­sit’s MVET was uncon­sti­tu­tion­al because the law that cre­at­ed it — RCW 81.104.160(1) —  did not set forth at full length either the orig­i­nal 1996 depre­ci­a­tion sched­ule for valu­ing motor vehi­cles or the more recent 2006 depre­ci­a­tion sched­ule.

The Court dis­agreed.

“We hold RCW 81.104.160(1) is con­sti­tu­tion­al under arti­cle II, sec­tion 37,” opined Jus­tice Susan Owens, writ­ing for a sev­en-mem­ber major­i­ty of the Court.

“It is read­i­ly ascer­tain­able from the words of the statute alone when which depre­ci­a­tion sched­ule will apply, and the statute prop­er­ly adopts both sched­ules by ref­er­ence. Fur­ther­more, the MVET statute does not ren­der any oth­er exist­ing statutes erro­neous because it does not require any read­er to con­duct research for unref­er­enced statutes to under­stand the rights impact­ed by the MVET statute itself,” Owens con­clud­ed. The rul­ing affirms a pri­or Supe­ri­or Court deci­sion.

Arti­cle II, Sec­tion 37 of the Con­sti­tu­tion states that “[n]o 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.” This is the pro­vi­sion that the plain­tiffs argued that the Leg­is­la­ture vio­lat­ed when it adopt­ed a trans­porta­tion pack­age that gave Sound Tran­sit the abil­i­ty to levy a high­er motor vehi­cle excise tax.

“To deter­mine whether a statute vio­lates arti­cle II, sec­tion 37, the first ques­tion we must answer is whether the statute is a ”com­plete act,’ such that the rights or duties under the statute can be under­stood with­out refer­ring to anoth­er statute;complete acts that adopt oth­er statutes by ref­er­ence sat­is­fy this ques­tion under arti­cle II, sec­tion 37,” Owens’ opin­ion explains.

“The sec­ond ques­tion we answer is whether ”a straight­for­ward deter­mi­na­tion of the scope of rights or duties under the exist­ing statutes [would] be ren­dered erro­neous by the new enact­ment,’ ” the opin­ion goes on to add.

With regards to the first ques­tion, the major­i­ty rea­soned:

“The MVET statute specif­i­cal­ly states in which cir­cum­stance each depre­ci­a­tion sched­ule will apply. It does not mat­ter if the leg­is­la­ture set forth two depre­ci­a­tion sched­ules for dif­fer­ent cir­cum­stances and made the cur­rent depre­ci­a­tion sched­ule inap­plic­a­ble for a peri­od of time because it remains clear to the read­er when each depre­ci­a­tion sched­ule will apply, and that is what arti­cle II, sec­tion 37 requires. Because the leg­is­la­ture clear­ly laid out when each sched­ule will apply, there is no con­fu­sion or ambi­gu­i­ty aris­ing from the text of the statute itself.”

And with regards to the sec­ond ques­tion, the major­i­ty rea­soned:

“The MVET statute uses the same lan­guage, indi­cat­ing the for­mer depre­ci­a­tion sched­ule will be used for Sound Tran­sit’s bond con­tracts ‘notwith­stand­ing’ the cur­rent RCW chap­ter that includes the cur­rent depre­ci­a­tion sched­ule”

“There­fore, the MVET statute’s effect on oth­er statutes is clear, and it does not ren­der a straight­for­ward deter­mi­na­tion of the scope of rights or duties under any oth­er exist­ing statutes erro­neous.”

The major­i­ty also offered a quick primer on the pur­pose of Arti­cle II, Sec­tion 37:

“Arti­cle II, Sec­tion 37 is intend­ed to pro­tect the leg­is­la­ture and the pub­lic against fraud and decep­tion. By ref­er­enc­ing exter­nal sources, the leg­is­la­ture is avoid­ing fraud and decep­tion — it is inform­ing read­ers of the statute what exter­nal sources apply to the statute and their over­all effect. To bar ref­er­ence to exter­nal sources in statutes [which the plain­tiffs had argued was in inap­pro­pri­ate] would unnec­es­sar­i­ly restrict and bur­den the leg­is­la­ture’s role in draft­ing statutes.”

Two mem­bers of the Court — Chief Jus­tice Debra Stephens and Asso­ciate Jus­tice Sheryl Gor­don McCloud — dis­sent­ed. (Per­haps not coin­ci­den­tal­ly, McCloud and Stephens also sided against the coali­tion of plain­tiffs seek­ing to over­turn Tim Eyman’s I‑976 as uncon­sti­tu­tion­al a cou­ple of months ago.)

McCloud’s dis­sent­ing opin­ion argues:

“The effects of the MVET statute before us are scat­tered not only across the code but also across a com­pli­cat­ed 24-year his­to­ry. And the MVET statute ren­ders anoth­er enact­ment of our leg­is­la­ture — the cur­rent depre­ci­a­tion sched­ule— inop­er­a­tive with­out ever ref­er­enc­ing it, much less set­ting it forth ‘at full length.’ The MVET statute there­fore vio­lates the con­sti­tu­tion­al man­date designed to pro­vide clar­i­ty to the leg­isla­tive process. I respect­ful­ly dis­sent.”

The opin­ion in its entire­ty can be read below:

Supreme Court’s deci­sion in Black v. Cen­tral Puget Sound Region­al Tran­sit Author­i­ty

This is a dif­fi­cult case to explain in a blog post, because it con­cerns the accept­able use of ref­er­ence statutes, which is a legal con­cept that many peo­ple may not be famil­iar with. If you have the time, the opin­ion above is a pret­ty good read.

The Court’s deci­sion means that Black­’s law­suit is at an end and anoth­er threat to Sound Tran­sit 3 has been neu­tral­ized. The agency has a rather ster­ling record of win­ning cas­es in the Supreme Court, which is a tes­ta­ment to the legal acu­men of its chief coun­sel, Desmond Brown, and the attor­neys who work with Brown.

There remains the threat of Tim Eyman’s I‑976, which was most­ly upheld yes­ter­day in a deci­sion hand­ed down by Judge Mar­shall Fer­gu­son of the King Coun­ty Supe­ri­or Court. Fer­gu­son has opt­ed to defer rul­ing on two issues for the time being and grant­ed leave to the par­ties to con­duct dis­cov­ery and re-present argu­ments on those two issues. After that hap­pens, the legal chal­lenge against I‑976 is like­ly to land in the Wash­ing­ton State Supreme Court.

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