FILED

2020 JAN 24 04:11 PM The Honorable Marshall Ferguson
February 7, 2020, at 9:00 a.m.
KING COUNTY
With Oral Argument
SUPERIOR COURT CLERK
E-FILED
CASE #: 19-2-30171-6 SEA

1
2
3
4
5
6

STATE OF WASHINGTON
KING COUNTY SUPERIOR COURT

7
8
9
10
11
12
13
14
15
16
17
18

GARFIELD COUNTY
TRANSPORTATION AUTHORITY; et al.,
and

Plaintiffs,

WASHINGTON ADAPT; TRANSIT
RIDERS UNION; and CLIMATE
SOLUTIONS,

DEFENDANT STATE OF
WASHINGTON AND
INTERVENOR-DEFENDANT PIERCE
COUNTY’S COMBINED OPPOSITION
TO PLAINTIFFS AND
INTERVENOR-PLAINTIFFS’ MOTIONS
FOR SUMMARY JUDGMENT

Intervenor-Plaintiffs,
v.
STATE OF WASHINGTON,
Defendant,
and

20

CLINT DIDIER; PERMANENT
OFFENSE; TIMOTHY D. EYMAN;
MICHAEL FAGAN; JACK FAGAN; and
PIERCE COUNTY,

21

Intervenor-Defendants.

19

NO. 19-2-30171-6 SEA

22
23
24
25
26
STATE OF WASHINGTON AND PIERCE
COUNTY’S OPPOSITION TO
PLAINTIFFS’ MOTIONS FOR
SUMMARY JUDGMENT
NO. 19-2-30171-6 SEA

ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 TABLE OF CONTENTS

1
2
3
4
5

I.

INTRODUCTION ............................................................................................................. 1

II.

STATEMENT OF FACTS................................................................................................ 1

III.

STATEMENT OF ISSUES ............................................................................................... 1

6
7
8
9
10
11
12
13

1.

Have Plaintiffs proven beyond a reasonable doubt that I-976 violates
article XI, section 12 of the Washington Constitution? ..................................... 1

2.

Have Plaintiffs proven beyond a reasonable doubt that I-976 violates
article I, section 12 of the Washington Constitution? ........................................ 1

3.

Have Plaintiffs proven beyond a reasonable doubt that I-976 violates
article VII, section 5 of the Washington Constitution? ...................................... 1

4.

If the Court finds any part of I-976 unconstitutional, should it be severed
from the rest of the Initiative? ............................................................................ 1

IV.

EVIDENCE RELIED UPON ............................................................................................ 2

V.

ARGUMENT .................................................................................................................... 2
A. I-976 Does Not Violate Article II, Section 19 of the Washington Constitution ........ 2

14
15
16

1.

I-976 complies with the subject-in-title rule ...................................................... 2

2.

I-976 complies with the single-subject rule ....................................................... 4

B. I-976 Does Not Violate Article II, Section 37 of the Washington Constitution ........ 8

17

C. I-976 Does Not Violate Article XI, Section 12 of the Washington Constitution .... 10

18

D. I-976 Does Not Violate Article I, Section 19 of the Washington Constitution ....... 12

19
20
21

E.

I-976 Does Not Violate Article VII, Section 5 of the Washington Constitution ..... 15

F.

I-976 Does Not Violate the Separation of Powers ................................................... 17

G. I-976 Does Not Violate Article I, Section 12 of the Washington Constitution ....... 18

22
23

H. Plaintiffs’ Contractual Impairment Claim, Which is Limited to the City of
Burien’s TBD Fees, Should be Denied .................................................................... 20

24

I.

25
26

VI.

If the Court Finds Any Part of I-976 Unconstitutional, It Should Sever that Part
from the Rest of the Initiative .................................................................................. 21

CONCLUSION ............................................................................................................... 22

STATE OF WASHINGTON AND PIERCE
COUNTY’S OPPOSITION TO
PLAINTIFFS’ MOTIONS FOR
SUMMARY JUDGMENT
NO. 19-2-30171-6 SEA

i

ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 I.

1

INTRODUCTION

2

Plaintiffs offer a multitude of reasons why they claim this Court should overturn the will

3

of the People and invalidate Initiative 976, but every one of their arguments falls apart under

4

scrutiny. What matters in evaluating an initiative’s constitutionality is not the quantity of

5

arguments, but their quality: the initiative is “presumed to be constitutional,” and the Court

6

should strike it down only if there is “no reasonable doubt that the statute violates the

7

constitution.” Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 205, 11 P.3d 762

8

(2001) (ATU). Plaintiffs’ motion for summary judgment falls well short of meeting this “heavy

9

burden.” Id. Their arguments rely on twisting the language of I-976, its ballot title, our

10

Constitution, and Supreme Court precedent, but that is not the proper approach. The Court must

11

resolve any doubts in favor of upholding the measure. Applying this correct approach, the Court

12

should deny Plaintiffs’ motion and grant the joint motion for summary judgment of the State and

13

Pierce County.
II.

14
15
16

Washington and Pierce County incorporate by reference the statement of facts contained
in their Motion for Summary Judgment (Defendants’ MSJ).
III.

17
18
19
20
21
22
23
24
25

STATEMENT OF FACTS

STATEMENT OF ISSUES

In addition to the six issues identified in Defendants’ MSJ, four additional issues are
raised by Plaintiffs’ MSJ:
1.

Have Plaintiffs proven beyond a reasonable doubt that I-976 violates article XI,
section 12 of the Washington Constitution?

2.

Have Plaintiffs proven beyond a reasonable doubt that I-976 violates article I,
section 12 of the Washington Constitution?

3.

Have Plaintiffs proven beyond a reasonable doubt that I-976 violates article VII,
section 5 of the Washington Constitution?

4.

If the Court finds any part of I-976 unconstitutional, should it be severed from the
rest of the Initiative?

26
STATE OF WASHINGTON AND PIERCE
COUNTY’S OPPOSITION TO
PLAINTIFFS’ MOTIONS FOR
SUMMARY JUDGMENT
NO. 19-2-30171-6 SEA

1

ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 IV.

1

EVIDENCE RELIED UPON

2

This Opposition relies upon the supporting Supplemental Declaration of Alan D. Copsey

3

and the exhibit attached thereto, the Declaration of Alan D. Copsey submitted in support of

4

Defendants’ MSJ and the exhibits attached thereto, as well as the pleadings and records on file

5

in this matter.

6
7

V.
A.

ARGUMENT

I-976 Does Not Violate Article II, Section 19 of the Washington Constitution

8

There are “two distinct prohibitions” within article II, section 19, both of which Plaintiffs

9

allege are contravened: (1) the single-subject rule, which precludes an initiative from covering

10

more than one subject; and (2) the subject-in-title rule, which requires that the title of an initiative

11

inform voters of the subject matter of the measure. See ATU, 142 Wn.2d at 207. Both

12

requirements are to be “‘liberally construed in favor of the legislation.’” Pierce Cty. v. State, 150

13

Wn.2d 422, 436, 78 P.3d 640 (2003) (Pierce Cty. I) (quoting Wash. Fed’n of State Emps. v. State,

14

127 Wn.2d 544, 555, 901 P.2d 1028 (1995)). If the words in a title can be given two

15

interpretations, one of which makes the measure constitutional and the other unconstitutional, a

16

court is to adopt the constitutional interpretation. Wash. Fed’n of State Emps., 127 Wn.2d at 556.

17

1.

18

Plaintiffs’ argument that I-976’s ballot title deceives voters relies on misreading the title

19

I-976 complies with the subject-in-title rule

and misreading the law as it existed prior to I-976. The Court should reject these errors.

20

Plaintiffs first claim that the ballot title “affirmatively misleads” voters into believing

21

“that prior voter approved charges would remain intact.” Pls.’ MSJ at 21. But that is not what

22

the title said. The first clause told voters without qualification that the measure “would repeal,

23

reduce, or remove authority to impose certain vehicle taxes and fees.” The second clause refers

24

not to “vehicle taxes and fees” generally, but instead specifies that I-976 would “limit annual

25

motor-vehicle-license fees to $30, except voter-approved charges” (emphasis added). The

26

clauses are separated by a semi-colon, and under normal rules of grammar and statutory
STATE OF WASHINGTON AND PIERCE
COUNTY’S OPPOSITION TO
PLAINTIFFS’ MOTIONS FOR
SUMMARY JUDGMENT
NO. 19-2-30171-6 SEA

2

ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 1

construction, the exception for “voter-approved charges” in the second clause clearly refers back

2

only to the $30 limit on “motor-vehicle-license fees.” See, e.g., Dep’t of Labor & Indus. v.

3

Slaugh, 177 Wn. App. 439, 450-51, 312 P.3d 676 (2013) (holding that in a series of items

4

separated by semicolons, a modifying phrase following a comma in one item in the series should

5

normally be understood to modify only that item). 1

6

Crucially, as explained in Defendants’ MSJ at 15-16, “motor vehicle license fees” are a

7

specific type of fee that may only be used for highway purposes. Wash. Const. art. II, § 40. Other

8

charges voters pay when registering a vehicle, such as TBD fees and local MVETs, are not

9

“motor vehicle license fees.” Thus the only “voter-approved charges” excepted from the $30

10

limit in the title’s second clause are “motor-vehicle-license fees” that might be approved by

11

voters, none of which existed prior to I-976.

12

Plaintiffs nitpick this straightforward reading by claiming that I-976’s reference to “state

13

and local motor vehicle license fees” means that in I-976, “motor vehicle license fees” in the

14

title’s second clause should be understood to include things like TBD fees and MVETs. But

15

section 2(2) of I-976 defines “state and local motor vehicle license fees” as “fees paid annually

16

for licensing motor vehicles” (emphasis added). By its own terms that definition does not include

17

taxes like MVETs, and it cannot include TBD fees because fees paid “for licensing motor

18

vehicles” may be used constitutionally only for highway purposes, not the transit purposes for

19

which TBD fees are commonly used. Wash. Const. art. II, § 40. Even if this point were debatable,

20

the Court is required to construe any debatable language in favor of the Initiative’s

21

constitutionality. Wash. Fed’n of State Emps., 127 Wn.2d at 556. Plaintiffs’ misreading of the

22

title does not make the title affirmatively misleading.

23

Plaintiffs also incorrectly argue that the title is misleading in describing the measure as

24

limiting “annual motor-vehicle-license fees to $30.” Pls.’ MSJ at 24-25. They claim that is untrue

25
26

See also, e.g., https://www.businessinsider.com/how-to-use-semicolons-2013-9 (“1. Use a semicolon to
separate items in a list or series containing internal punctuation.”); State of Washington Statute Law Committee,
Bill Drafting Guide 66 (2019), http://leg.wa.gov/CodeReviser/Documents/2019BillDraftingGuide.pdf.
1

STATE OF WASHINGTON AND PIERCE
COUNTY’S OPPOSITION TO
PLAINTIFFS’ MOTIONS FOR
SUMMARY JUDGMENT
NO. 19-2-30171-6 SEA

3

ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 1

because the measure leaves in place a variety of fees charged under RCW 46.17, such as the

2

“license plate technology fee,” RCW 46.17.015, or the filing fees required under

3

RCW 46.17.005, which will make total State charges for car tabs exceed $30. But their reading

4

again misrepresents I-976. Reading I-976 together with the existing law it amended, it is clear

5

that the charges I-976 leaves in place beyond $30 are not “vehicle license fees.” See, e.g.,

6

RCW 46.04.671 (explaining that “‘Vehicle license fee’ does not include license plate fees”);

7

Copsey Decl. to Defs.’ MSJ, Ex. 3, I-976, §§ 3(2) and 4(4) (hereinafter, “I-976”). Here again,

8

even if the Initiative were susceptible to multiple readings, the Court must choose the reading

9

that preserves its constitutionality. Wash. Fed’n of State Emps., 127 Wn.2d at 556.

10

Finally, Plaintiffs claim that I-976’s title had to mention bonds and electric vehicle fees

11

to be accurate. Pls.’ MSJ at 25. But ballot titles have strict word limits, and a title is

12

constitutionally sufficient “‘if it gives notice that would lead to an inquiry into the body of the

13

act, or indicate to an inquiring mind the scope and purpose of the law.’” Pierce Cty. I, 150 Wn.2d

14

at 436 (quoting YMCA v. State, 62 Wn.2d 504, 506, 383 P.2d 497 (1963)). The title here served

15

those purposes. It could not possibly have mentioned every tax or fee affected by the measure,

16

but instead used a general reference in the first clause, and the measure’s impact on bonds is

17

directly related to facilitating the tax reductions mentioned in the title. There is no constitutional

18

violation.

19

2.

20

There is no constitutional problem with an initiative that makes multiple changes in the

21

I-976 complies with the single-subject rule

law related to one overarching subject and to each other. That is precisely what I-976 does.

22

The first question in single-subject analysis is whether the bill’s title is general or

23

restrictive. City of Burien v. Kiga, 144 Wn.2d 819, 825, 31 P.3d 659 (2001). Plaintiffs offer only

24

a passing argument that I-976’s ballot title is restrictive, claiming that the title is limited to

25

“a particular type of charge” and lists only certain things the measure would do. Pls.’ MSJ at 26.

26

But I-976’s title uses the broad term “motor vehicle taxes and fees,” and the title is not restrictive
STATE OF WASHINGTON AND PIERCE
COUNTY’S OPPOSITION TO
PLAINTIFFS’ MOTIONS FOR
SUMMARY JUDGMENT
NO. 19-2-30171-6 SEA

4

ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 1

just because the concise description references some, but not all, of the provisions in the Initiative

2

that relate to the overarching topic. Filo Foods, LLC v. City of SeaTac, 183 Wn.2d 770, 784, 357

3

P.3d 1040 (2015). Even if Plaintiffs had raised some doubt as to whether the title is general, that

4

is not enough. Because the title can be interpreted as general, it should be understood that way.

5

Wash. Fed’n of State Emps., 127 Wn.2d at 556.

6

Plaintiffs assume in the rest of their argument that the title of I-976 is general, and turn

7

to the “rational unity” requirement of the single-subject rule. To argue against rational unity,

8

they assert that I-976 contains seven subjects, which they argue are not germane to one another.

9

Their attempt to parse out discrete subjects to isolate them from one another is contrary to the

10

way a court is to determine rational unity. The court is to use “great liberality” in assessing

11

whether the topics in an initiative have rational unity. Filo Foods, 183 Wn.2d at 782. There is

12

no violation just because a “general subject contains several incidental subjects or subdivisions.”

13

ATU, 142 Wn.2d at 207.

14

To avoid the requirement of liberal interpretation, Plaintiffs cite three cases invalidating

15

other initiatives, without considering how I-976 differs from those initiatives. Pls.’ MSJ at 28-29

16

(citing ATU, City of Burien, and Lee v. State, 185 Wn.2d 608, 374 P.3d 157 (2016)). A closer

17

look at those decisions shows how I-976 is unlike the initiatives invalidated in those cases.

18

In ATU and Lee, the Court invalidated the challenged initiative because each initiative

19

combined a $30 “license tab fee” provision with provisions addressing a wide range of taxes and

20

fees entirely unrelated to vehicles. In ATU, the Court held that I-695 addressed two subjects—

21

(1) providing for $30 “license tab fees”; and (2) requiring voter approval for a wide range of

22

unrelated state and local taxes and fees including property taxes, business and occupation taxes,

23

impact fees, permit fees, and “any monetary charge by government”—and that neither subject

24

was necessary to implement the other. ATU, 142 Wn.2d at 193, 217. In Lee, the Court found that

25

I-1366 addressed two unrelated subjects—(1) providing for $30 “license tab fees”; and

26

(2) requiring either a reduction to the current sales tax rate or submission to voters of a
STATE OF WASHINGTON AND PIERCE
COUNTY’S OPPOSITION TO
PLAINTIFFS’ MOTIONS FOR
SUMMARY JUDGMENT
NO. 19-2-30171-6 SEA

5

ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 1

constitutional amendment—and that neither subject was necessary to implement the other.

2

Lee, 185 Wn.2d at 622-23.

3

In City of Burien, the Court found that I-722 addressed two unrelated subjects:

4

(1) nullifying and refunding a wide range of 1999 tax increases, implicating utility charges,

5

hospital charges, housing authority rents, city moorage rates, park district admissions, port

6

district cold storage charges, and numerous other “monetary charges”; and (2) changing the

7

method of assessing property taxes, culminating in a two percent cap for property tax increases.

8

City of Burien, 144 Wn.2d at 827. The Court held that the nullification and onetime refund of

9

various 1999 tax increases and monetary charges was “unnecessary and entirely unrelated to

10

permanent, systemic changes in property tax assessments.” Id.

11

As explained in Defendants’ MSJ at 12, all of the provisions in I-976 relate to motor

12

vehicle taxes and fees and the provisions work together to reduce those taxes and fees. Sections

13

2 through 11 and section 13 directly address motor vehicle taxes and fees by repealing, reducing,

14

or removing authority to impose various taxes and fees on motor vehicle sales or licensing. The

15

subjects addressed—vehicle license fees (sections 2 through 4), electric vehicle fees (section 5),

16

motor vehicle excise taxes (sections 8 through 13), other fees such as TBD vehicle fees or weight

17

fees (section 6), and sales and use taxes (sections 7, 11, and 16)—all involve limits on motor

18

vehicle taxes or fees and therefore are all germane to the overarching subject of motor vehicle

19

taxes and fees.

20

Section 12, which Plaintiffs call out specifically, is germane to the general subject of

21

motor vehicle taxes and fees because it is intended to ensure that one type of repealed motor

22

vehicle tax, the MVET, is no longer collected. It does so by requiring bonds that rely on that tax

23

to be retired, defeased, or refinanced to the extent possible. By making the elimination of Sound

24

Transit’s authority to levy and collect MVETs (sections 10 and 11) contingent on Sound

25

Transit’s ability to retire, defease, or refinance its outstanding bonds, section 12 is a rational

26

response to avoid the unconstitutional flaw the Supreme Court identified in Pierce County v.
STATE OF WASHINGTON AND PIERCE
COUNTY’S OPPOSITION TO
PLAINTIFFS’ MOTIONS FOR
SUMMARY JUDGMENT
NO. 19-2-30171-6 SEA

6

ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 1

State, 159 Wn.2d 16, 39, 148 P.3d 1002 (2006) (Pierce Cty. II) (holding that I-776, by limiting

2

motor vehicle excise taxes that Sound Transit could collect, unconstitutionally impaired

3

contracts between Sound Transit and its bondholders). Because section 12 helps implement

4

sections 10 and 11, those sections are germane to one another. See Citizens for Responsible

5

Wildlife Mgmt., 149 Wn.2d 622, 637, 71 P.3d 644 (2003) (holding that where one section of a

6

measure is necessary to implement another section, those two sections are germane to one

7

another). And because section 12 is necessary to implement the sections repealing MVET

8

authority, it is artificial to characterize section 12 as imposing a one-time change. The sections

9

work together.

10

Plaintiffs argue that the cost to Sound Transit to defease or refinance its outstanding debt

11

would require additional taxes and the reallocation of taxpayer funds. Pls.’ MSJ at 31. Their

12

argument puts the cart before the horse. The possibility that a government agency will respond

13

to an initiative in a particular way does not make that response one of the initiative’s “subjects.”

14

If that were the rule, the possible responses of cities to I-502 would have been “subjects” of the

15

measure; how local governments would revise their budgets in light of the changes in liquor

16

taxation under I-1183 would have been “subjects” of the measure; and how county sheriffs would

17

implement I-1639 would have been a “subject” of the measure. That is not how the analysis

18

works. A local government cannot manufacture a subject of an initiative by claiming that it will

19

respond in a particular way.

20

Plaintiffs are similarly unsuccessful in arguing that the dissenting opinion in Pierce Cty.

21

I should somehow control this Court’s view of I-976. Pls.’ MSJ at 32. The majority in Pierce

22

Cty. I did not opine on whether the “policy fluff” in I-776 would have constituted a separate

23

subject if it instead had been operative language. See Pierce Cty. I, 150 Wn.2d at 433-36. When

24

the Court did ultimately find section 6 of I-776 unconstitutional, it was because it impaired

25

contracts between bondholders and Sound Transit, not because it violated the single-subject rule.

26

Pierce Cty. II, 159 Wn.2d at 27-39.
STATE OF WASHINGTON AND PIERCE
COUNTY’S OPPOSITION TO
PLAINTIFFS’ MOTIONS FOR
SUMMARY JUDGMENT
NO. 19-2-30171-6 SEA

7

ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 1

Plaintiffs try to separate out section 7 of the Initiative, arguing that a sales tax is different

2

from a licensing fee or tax. But the subject of the measure is “motor vehicle taxes and fees,” of

3

which licensing fees and taxes are a subset. Both in that argument and in their argument regarding

4

the use of the Kelly Blue Book to value vehicles for an MVET, Plaintiffs take the holding in City

5

of Burien too far. That decision held that “rational unity must exist among all matters included

6

within the measure . . . .” City of Burien, 144 Wn.2d at 826. One way in which there can be

7

rational unity is for one purpose to be necessary to the implementation of another, but that is not

8

the only way. Citizens for Responsible Wildlife Mgmt., 149 Wn.2d at 638. “For purposes of

9

legislation, ‘subjects’ are not absolute existences to be discovered by some sort of a priori

10

reasoning, but are the result of classification for convenience of treatment and for greater

11

effectiveness in attaining the general purpose of the particular legislative act.” ATU, 142 Wn.2d

12

at 209-10 (quoting Wash. Toll Bridge Auth. v. Yelle, 61 Wn.2d 28, 33, 377 P.2d 466 (1962)).

13

All of the provisions in I-976 either directly address motor vehicle taxes and fees—the

14

general subject of the Initiative—or are rationally necessary to implement provisions that directly

15

address motor vehicle taxes and fees. All of the sections are thus germane to the general subject

16

and one other.

17

B.

18
19

I-976 Does Not Violate Article II, Section 37 of the Washington Constitution
I-976 complies with article II, section 37 of the Washington Constitution. Plaintiffs’

contrary arguments fail for at least four reasons.

20

First, Plaintiffs’ one-paragraph argument misunderstands the test for determining

21

whether an act is a “complete act.” Pls.’ MSJ at 36. Whether an act is “complete” is determined

22

on a subject-by-subject basis. ATU, 142 Wn.2d at 255 (“I-695 cannot be said to be incomplete

23

as to the subject of eliminating the MVET.”). That some sections of a bill amend existing law

24

does not establish that the act is incomplete. For example, in El Centro de la Raza v. State, 192

25

Wn.2d 103, 428 P.3d 1143 (2018), the Supreme Court held that the Charter School Act was

26

complete even though numerous provisions amended existing statutes. Id. at 129. While
STATE OF WASHINGTON AND PIERCE
COUNTY’S OPPOSITION TO
PLAINTIFFS’ MOTIONS FOR
SUMMARY JUDGMENT
NO. 19-2-30171-6 SEA

8

ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 1

Plaintiffs are correct that I-976 “revises existing statutes,” that does not end the inquiry. A bill is

2

complete as to a subject if it “fully declares its terms,” even if the effect of the bill “may be to

3

enlarge or restrict the operation of other statutes.” Wash. Citizen Action v. Office of Insurance

4

Comm’r, 94 Wn. App 64, 69, 971 P.2d 527 (1999) (citing State v. Manussier, 129 Wn.2d 652,

5

665, 921 P.2d 473 (1996)).

6

Second, I-976 does not amend RCW 36.73. Plaintiffs’ erroneous argument to the contrary

7

is based on misidentifying the source of a TBD’s authority to impose vehicle fees. See Pls.’ MSJ

8

at 36-37. A TBD’s authority to impose vehicle fees comes from RCW 82.80.140(1): “Subject to

9

the provisions of RCW 36.73.065, a transportation benefit district under chapter 36.73 RCW

10

may fix and impose an annual vehicle fee . . . .” The “[s]ubject to” clause merely indicates that

11

such a fee sometimes requires voter approval. See RCW 36.73.065. Plaintiffs wrongly assert that

12

two provisions of RCW 36.73 grant TBDs “the power to impose a vehicle fee.” Pls.’ MSJ at

13

36-37, citing RCW 36.73.040(3)(b) and RCW 36.73.065. Both provisions identify the source of

14

authority for those fees as RCW 82.80.140. See RCW 36.73.065(3)(c)-(d), (4)(a) (referencing

15

“the vehicle fee authorized in RCW 82.80.140” (emphasis added)); see also RCW 36.73.040

16

(referencing “[a] vehicle fee in accordance with RCW 82.80.140” (emphasis added)). The impact

17

of I-976 on the authority of TBDs to impose a vehicle fee is clear and consistent with article II,

18

section 37.

19

Third, I-976 does not amend any provision in RCW 46.17 other than those that are set

20

forth. See I-976, §§ 3-5, 6(1). Plaintiffs attempt to manufacture a constitutional defect by arguing

21

that I-976 silently repeals other provisions in RCW 46.17. Pls.’ MSJ at 37-39. Plaintiffs are

22

wrong for the reasons set forth in the State’s motion for summary judgment. Defs.’ MSJ at 17-

23

18. In addition to being inconsistent with the plain meaning of section 2 of I-976, Plaintiff’s

24

proposed interpretation would violate a well-established canon of statutory interpretation: “If

25

possible, the court will construe a statute so as to render it constitutional.” State v. Watkins,

26

191 Wn.2d 530, 535, 423 P.3d 830 (2018). Even if I-976 could be construed as unconstitutionally
STATE OF WASHINGTON AND PIERCE
COUNTY’S OPPOSITION TO
PLAINTIFFS’ MOTIONS FOR
SUMMARY JUDGMENT
NO. 19-2-30171-6 SEA

9

ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 1

amending other provisions of RCW 46.17—and it cannot—this Court should reject such an

2

interpretation.

3

Finally, there is no merit to Plaintiffs’ argument about confusion around voter authority

4

to enact vehicle fees. Article II, section 37 applies only where an act is “revised or amended.”

5

Wash. Const., art. II, § 37. Plaintiffs fail to identify any act related to voter authority that I-976

6

allegedly revises or amends other than those expressly included in I-976. See Pls.’ MSJ at 22,

7

citing I-976, § 6. That makes this case unlike ATU, where an initiative violated article II, section

8

37 based on its impact on a specific existing statute, RCW 53.36.100. 142 Wn.2d at 253-54. This

9

case is also unlike Washington Citizens Action of Washington v. State, 162 Wn.2d 142, 154-55,

10

171 P.3d 486 (2007), where an initiative violated article II section 37 because it incorrectly set

11

forth the statute it amended.
In sum, Plaintiffs have not established that I-976 violates article II, section 37.

12
13

C.

I-976 Does Not Violate Article XI, Section 12 of the Washington Constitution 2

14

Municipal corporations have no inherent power to tax; the Washington Constitution vests

15

that power in the Legislature. Watson v. City of Seattle, 189 Wn.2d 149, 166, 401 P.3d 1 (2017).

16

Plaintiffs argue, however, that once the Legislature grants local governments certain taxing

17

authority and they exercise that authority, the Legislature (and the People) have no power to

18

revoke or modify local taxing power. Our Supreme Court foreclosed this argument in Pierce

19

County I, 150 Wn.2d at 440, and the cases Plaintiffs cite do not remotely support their claim.

20

In Pierce County I, the Plaintiffs argued that I-776’s termination of local taxing authority

21

violated article XI, section 12. The Supreme Court disagreed, explaining that “[a]rticle XI,

22

section 12 permits the state to legislate what taxes and fees local governments are authorized to

23

impose.” 150 Wn.2d at 440. “Each local government . . . then decides whether to impose the

24

taxes and fees authorized by the State’s general laws.” Id. But “[t]he legislature—or the people

25
26

2
Pierce County joins all parts of this Combined Opposition except this section, on which Pierce County is
filing separate argument.

STATE OF WASHINGTON AND PIERCE
COUNTY’S OPPOSITION TO
PLAINTIFFS’ MOTIONS FOR
SUMMARY JUDGMENT
NO. 19-2-30171-6 SEA

10

ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 1

legislating by initiative—may rescind by general laws the authority previously granted. When

2

that happens, as here, no violation of article XI, section 12 occurs.” Id. (emphasis added).

3

Plaintiffs claim that this clear holding is distinguishable because it addressed only “unexercised

4

local taxing authority,” i.e., where a local government had not actually imposed the authorized

5

tax. Pls.’ MSJ at 47 (emphasis in original). That is inaccurate. The Supreme County in Pierce

6

County I explicitly mentioned that “some counties had imposed the $15 local option vehicle fee”

7

that I-776 repealed, but still found no violation. 150 Wn.2d at 440. In short, Pierce County I

8

controls here and forecloses Plaintiffs’ argument.

9

Even if there were no precedent so directly on point, Plaintiffs’ argument would make no

10

sense. Their assertion rests on a misinterpretation of the term “vest,” which they cobble together

11

from cases having nothing to do with the Legislature’s delegation of taxing authority.

12

Plaintiffs claim that when article XI, section 12 says that “the Legislature . . . may, by

13

general laws, vest in the corporate authorities [of local governments], the power to assess and

14

collect taxes,” it was using “vest” to mean the granting of some sort of permanent legal right.

15

But the more common meaning of “vest” is simply “to grant or endow with a particular authority,

16

right, or property,” without any reference to permanence. See Webster’s Third New International

17

Dictionary 2547 (2002). There is no reason to think that in this context the Framers meant the

18

alternative definition of creating a permanent right.

19

The cases Plaintiffs cite about vesting are utterly inapposite. Several involve whether the

20

government can take away by statute a property right or contract right previously granted to a

21

private company or individual. See, e.g., Caritas Servs., Inc. v. Dep't of Soc. & Health Servs.,

22

123 Wn.2d 391, 869 P.2d 28 (1994); Adams v. Ernst, 1 Wn.2d 254, 95 P.2d 799 (1939); Pearsall

23

v. Great N. Ry. Co., 161 U.S. 646, 16 S. Ct. 705, 40 L. Ed. 838 (1896). But none of these cases

24

said anything about delegated power or municipalities. State v. Carson, 6 Wash. 250, 33 P. 428

25

(1893), which did address article XI, section 12, used the term “vest,” but did not purport to

26

define it; it simply held that article XI, section 12 did not forbid a statute delegating to a county
STATE OF WASHINGTON AND PIERCE
COUNTY’S OPPOSITION TO
PLAINTIFFS’ MOTIONS FOR
SUMMARY JUDGMENT
NO. 19-2-30171-6 SEA

11

ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 1

treasurer the duty of collecting city taxes. Similarly, Plaintiffs cite Service Emps. Int’l Union

2

Local 925 v. Dep’t of Early Learning, 450 P.3d 1181, 1184 (Wash. 2019), for the premise that

3

no law may retroactively infringe a vested right, but that case does not define a vested right and

4

found no vested right in documents requested under the Public Records Act.

5

Plaintiffs cite Longview Co. v. Lynn, 6 Wn.2d 507, 108 P.2d 365 (1940), as an example

6

of a state statute that was “obnoxious to” article XI, section 12. Pls.’ MSJ at 46. But the

7

challenged statute violated article XI, section 12 because the Legislature imposed a tax on

8

municipalities for a municipal purpose, not because it altered a prior grant of taxing authority.

9

Id. at 525. That case has no bearing here.

10

Finally, Plaintiffs cite a passage from State v. Redd, 166 Wash. 132, 6 P.2d 619 (1932),

11

saying that once the Legislature delegates the power to tax for corporate purposes to a

12

municipality, that delegation is “absolute and complete.” Pls.’ MSJ at 45 (quoting Redd,

13

166 Wash. at 144-45). But that means only that nothing more need be done by the Legislature

14

for the municipality to exercise the authority the Legislature granted. It does not mean that the

15

Legislature (or the People) is powerless to amend or repeal a specific grant of taxing authority.

16

Redd says “[i]t is not within the power of the Legislature to take from the people of counties,

17

cities, and other municipal corporations the right of local self-government.” Redd, 166 Wash. at

18

139. But Redd does not say that limiting or withdrawing a specific grant of taxing authority takes

19

away the right of self-government.

20

In short, Plaintiffs cite no case in which a municipal government has successfully asserted

21

a vested right against amendment or repeal of a state statute granting authority to the

22

municipality, and Pierce County I rejects their argument. Article XI, section 12 does not preclude

23

I-976’s withdrawal of state authority to levy TBD fees and MVETs.

24

D.

I-976 Does Not Violate Article I, Section 19 of the Washington Constitution

25

Plaintiffs’ argument under article I, section 19 of the Washington Constitution has no

26

merit. That provision addresses how elections are conducted—when there is an election, it must
STATE OF WASHINGTON AND PIERCE
COUNTY’S OPPOSITION TO
PLAINTIFFS’ MOTIONS FOR
SUMMARY JUDGMENT
NO. 19-2-30171-6 SEA

12

ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 1

be “free and equal.” Wash. Const. art. I, § 19; see also Carlisle v. Columbia Irrig. Dist.,

2

168Wn.2d 555, 578, 229 P.3d 761 (2010) (“Article I, section 19 provides procedural safeguards

3

when there is an election . . . .”). That provision does not, however, guarantee that a result

4

accomplished by an election will stand in perpetuity or for any other period. In enacting I-976,

5

Washington state voters exercised their constitutional power to rescind the ability of TBDs to

6

impose an annual vehicle fee. This election was free and equal; the votes of Seattle TBD residents

7

received equal weight with the votes of residents of the rest of the State. There was no violation

8

of article I, section 19.

9

Plaintiffs cite no case suggesting that article I, section 19 includes any limitation on

10

subsequent legislation that impacts an issue previously submitted for a vote. Where the

11

constitution intends such a limitation, it sets it forth expressly. Wash. Const., art. II, § 1(c) (“No

12

act, law, or bill approved by a majority of the electors voting thereon shall be amended or

13

repealed by the legislature within a period of two years following such enactment . . .”).

14

If Plaintiffs were correct that article I, section 19 implicitly prohibits “subsequent

15

legislation designed to nullify prior election results,” Pls.’ MSJ at 49, an initiative could never

16

be repealed. This result is plainly absurd. Additionally, the second sentence of article II, section

17

1(c) of the state constitution, which prohibits amendment or repeal of an initiative within two

18

years, would be mere surplusage. See Wash. Const. art. II, § 1(c). And any local government

19

could render unconstitutional a future statewide initiative simply by having its voters pass a

20

contrary local ordinance. For example, under Plaintiffs’ theory, if one city’s voters passed an

21

ordinance allowing residents to buy firearms without background checks, voters statewide would

22

forever be prohibited from passing an initiative requiring such background checks. That cannot

23

be the law.

24

Plaintiffs’ “vote dilution” argument also misses the mark. In I-976, Washington voters

25

were asked, as relevant here, whether TBDs should have the authority to impose an annual

26

vehicle fee. I-976, § 6(4). Voters in the Seattle TBD had the same ability as all other voters in
STATE OF WASHINGTON AND PIERCE
COUNTY’S OPPOSITION TO
PLAINTIFFS’ MOTIONS FOR
SUMMARY JUDGMENT
NO. 19-2-30171-6 SEA

13

ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 1

the State to freely exercise their right of suffrage on that question. That a question of state law

2

was put to state voters is not “vote dilution,” it is a fundamental principle of state government

3

enshrined in article II, section 1 of the Washington Constitution. Plaintiffs’ argument to the

4

contrary presupposes that TBDs have an inherent right to decide at a local level whether to

5

impose an annual vehicle fee. See Pls.’ MSJ at 51. Plaintiffs are simply incorrect. A TBD’s

6

authority to impose an annual vehicle fee is statutory. See Wash. Const., art. XI, § 12; see also

7

Carlisle, 168 Wn.2d at 678 (recognizing “that the right to free and equal elections arises ‘only

8

at the stated times provided by the statutes related to elections’” (quoting State v. Wilson,

9

137 Wash. 125, 132, 241 P. 970 (1925))). I-976 validly repeals that statutory authority. See Part

10

C, above.

11

Finally, Plaintiffs’ argument regarding “constitutional mechanisms for revisiting election

12

results” lacks merit. Pls.’ MSJ at 51-52. Nothing in the Washington Constitution prevents state

13

legislation from impacting existing local legislation that was adopted by initiative. This is

14

unsurprising, as there is no constitutional right to legislate by initiative at the local level. See City

15

of Port Angeles v. Our Water-Our Choice!, 170 Wn.2d 1, 7-8, 239 P.3d 589 (2010). Plaintiffs

16

nonetheless ask this Court to infer such a limitation from other constitutional provisions. Pls.’

17

MSJ at 51-52 (citing Wash. Const. art. I, §§ 33, 34, art. II, § 1(b)). But the express inclusion of

18

a limitation in some constitutional provisions actually counsels against inferring the limitation

19

elsewhere. See State ex rel. O’Connell v. Port of Seattle, 65 Wn.2d 801, 399 P.2d 623 (1965)

20

(applying the expressio unius est exclusio alterius canon of construction when interpreting the

21

Washington Constitution). This Court should decline Plaintiffs’ invitation to rewrite the

22

Washington Constitution.

23
24

Plaintiffs cannot meet their burden of establishing that I-976 violates article I, section 19
of the Washington Constitution.

25
26
STATE OF WASHINGTON AND PIERCE
COUNTY’S OPPOSITION TO
PLAINTIFFS’ MOTIONS FOR
SUMMARY JUDGMENT
NO. 19-2-30171-6 SEA

14

ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 1

E.

I-976 Does Not Violate Article VII, Section 5 of the Washington Constitution

2

Plaintiffs next contend that I-976 violates article VII, section 5 of the Constitution, which

3

provides that: “No tax shall be levied except in pursuance of law; and every law imposing a tax

4

shall state distinctly the object of the same to which only it shall be applied.” Pls.’ MSJ at 52-53.

5

Their theory seems to be that, under this provision, if voters or legislators approve a tax to fund

6

a particular project or type of project, no subsequent law can affect how that money may be

7

spent. But that is not what the provision says, there is no case so holding, that theory makes no

8

sense, and the examples Plaintiffs offer fail to support their point.

9

The text of Article VII, section 5 simply does not address the situation here, where voters

10

choose to repeal or reduce taxes previously imposed. None of the cases Plaintiffs cite address

11

this issue either. And Plaintiffs’ theory leads to absurd consequences. It would mean, for

12

example, that once the Legislature approves a tax for a particular purpose, neither voters nor the

13

Legislature could ever repeal that tax or direct it to another purpose. It would mean that once

14

local voters approve a tax to fund a specific project, even those same voters could not then decide

15

to cancel that project and use the tax money for another purpose—it would have been

16

unconstitutional, for example, for Seattle voters to approve an MVET to fund an expanded

17

monorail, see Larson v. Seattle Popular Monorail Auth., 156 Wn.2d 752, 755, 131 P.3d 892

18

(2006), and then later vote to terminate the project and repeal the tax. It would also mean that if

19

local voters approved a tax to fund a particular project, and the State subsequently passed a law

20

rendering that type of project illegal, the State law would be unconstitutional because it “diverts”

21

local taxes that voters approved for a particular purpose. That makes no sense.

22
23

Even if Plaintiffs’ untenable theory were correct, their allegations would not show a
violation.

24

Plaintiffs first challenge section 12 of I-976, which requires that Sound Transit bonds

25

that rely on a MVET be retired, defeased, or refinanced to the extent possible. As the State and

26

Pierce County previously explained, section 12 was a rational response to the Supreme Court’s
STATE OF WASHINGTON AND PIERCE
COUNTY’S OPPOSITION TO
PLAINTIFFS’ MOTIONS FOR
SUMMARY JUDGMENT
NO. 19-2-30171-6 SEA

15

ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 1

holding in Pierce County II (see Defs.’ MSJ at 12); indeed, it was foreshadowed by the Pierce

2

County II Court itself, see 159 Wn.2d at 50 (clarifying that “nothing in our decision today

3

forecloses Sound Transit from electing to retire the bonds early”). Nevertheless, Plaintiffs now

4

attempt to challenge the constitutionality of this provision, arguing that I-976 “would force

5

Sound Transit to expend tax revenue raised exclusively by statute and approved by voters for the

6

construction and maintenance of high capacity transit instead to retire debt.” Pls.’ MSJ at 53-54.

7

This argument fails for at least three reasons. First, Sound Transit is not a party to this

8

action, and Plaintiffs should not be given standing to challenge a provision affecting a different

9

government entity. Second, even if Plaintiffs did have standing, they never explain how Sound

10

Transit’s use of funds to retire, defease, or refinance bonds improperly diverts taxes “into some

11

wholly unrelated project or fund.” Sheehan v. Cent. Puget Sound Reg'l Transit Auth., 155 Wn.2d

12

790, 804, 123 P.3d 88 (2005). I-976 leaves in place various Sound Transit taxes, such as sales

13

and use taxes, that have been pledged to secure Sound Transit bonds. See Pierce County II, 159

14

Wn.2d at 23-24. Use of taxes to pay back bonds they were pledged to secure is far from “wholly

15

unrelated.” Finally, at most, Plaintiffs’ claim about Sound Transit would create a factual issue

16

precluding summary judgment. I-976 requires Sound Transit to retire, defease, or refinance any

17

outstanding bonds only if its bond contracts allow that. I-976, § 12(2). Those bond contracts are

18

not before the Court, and the Declaration of Tracy Butler offered by Plaintiffs does not say

19

whether this condition is met. This Court is thus not in a position to determine whether those

20

contracts allow the bonds to be “retired or defeased early or refinanced.” I-976, § 12(2). Even if

21

the Court could make that determination, it would need to then make a factual conclusion that

22

Sound Transit has to use voter-approved tax revenues to retire, defease, or refinance its

23

outstanding bonds. But Sound Transit has many non-tax resources at its disposal, including, for

24
25
26
STATE OF WASHINGTON AND PIERCE
COUNTY’S OPPOSITION TO
PLAINTIFFS’ MOTIONS FOR
SUMMARY JUDGMENT
NO. 19-2-30171-6 SEA

16

ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 1

example, fare revenues, reserves, and excess debt capacity. See Copsey Supp. Decl., Ex. A at 4-

2

7, 12-13, 43. At most, this argument would therefore create a disputed issue of fact. 3

3

Plaintiffs next contend that “[a] similar issue arises with respect to I-976’s section 6,”

4

and complain about the inability of TBDs to continue “levy[ing] local taxes for transportation

5

improvements.” Pls.’ MSJ at 54. But this argument also lacks merit. As explained in Defendants’

6

MSJ, TBDs have no inherent power to tax. See Defs.’ MSJ at 20 (citing Watson, 189 Wn.2d at

7

178). Instead, that authority can be granted—or withdrawn—by the Legislature or the People

8

through an initiative, Pierce County I, 150 Wn.2d at 440, which is precisely what happened here.

9

Just because certain TBDs may not be able to complete the “particular transportation plans or

10

projects [they had] in mind” in implementing a TBD tax does not render I-976 unconstitutional

11

under article VII, section 5. For this reason too, Plaintiffs’ motion for summary judgment as to

12

article VII, section 5 of the Constitution should be denied.

13

F.

I-976 Does Not Violate the Separation of Powers

14

Plaintiffs offer two flawed arguments that I-976 violates the separation of powers.

15

First, they argue that I-976 “intrud[es] on multiple local legislatively approved projects

16

that are in the administrative stage and forc[es] the executive branch of local government to

17

address the consequences of each intrusion.” Pls.’ MSJ at 56. They rely on three cases addressing

18

the scope of the local initiative power. But the scope of the local initiative power is irrelevant to

19

this challenge to a state initiative. The Washington Supreme Court has held that the two are

20

distinct and the state initiative power is far broader. Protect Pub. Health v. Freed, 192 Wn.2d

21

477, 482, 430 P.2d 640 (2018). The state initiative power is coextensive with its legislative power

22

and is limited only by the federal and state constitutions. Coppernoll v. Reed, 155 Wn.2d 290,

23

299, 119 P.3d 290 (2005); ATU, 175 Wn.2d at 545. As explained above, the state legislative

24
25
26

Washington and Pierce County also object to the Declaration of Tracy Butler on the grounds that there
has been no discovery on this issue. To the extent this Court is inclined to entertain Plaintiffs’ fact-intensive
arguments as to non-party Sound Transit, Defendants should, at minimum, be given the opportunity to depose Ms.
Butler and engage in related third-party discovery on this issue.
3

STATE OF WASHINGTON AND PIERCE
COUNTY’S OPPOSITION TO
PLAINTIFFS’ MOTIONS FOR
SUMMARY JUDGMENT
NO. 19-2-30171-6 SEA

17

ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 1

power—and thus the state initiative power—to rescind taxing authority granted to a local

2

jurisdiction is inherent in article XI, section 12. Pierce Cty. I, 150 Wn.2d at 440. I-976 is well

3

within the state initiative power.

4

Second, Plaintiffs contend that the effective dates in section 16 of I-976

5

unconstitutionally delegate legislative authority by granting an entity other than the Legislature

6

the ability to set the timing of compliance based on its judgment, rather than on the happening

7

of a future event specified in the initiative. Pls.’ MSJ at 57-58. As explained in Defendants’ MSJ

8

at 22, it is well-established that legislation may be conditional on the actions of third parties,

9

even if the underlying act involves judgment on the part of the third party. See id., citing

10

Brower v. State, 137 Wn.2d 44, 969 P.2d 42 (1998); Diversified Inv. P’ship v. Dep’t of Social &

11

Health Servs., 113 Wn.2d 19, 775 P.2d 947 (1989); and State v. Storey, 51 Wash. 630, 99 P. 878

12

(1909). Section 16 establishes a valid contingency, which is not an improper delegation of

13

legislative authority. It is a “clearly recognized” legislative prerogative of long standing.

14

Brower, 137 Wn.2d at 55.

15

G.

I-976 Does Not Violate Article I, Section 12 of the Washington Constitution

16

Plaintiffs next contend that section 8 of I-976 violates article I, section 12 of the

17

Washington Constitution—the “Privileges or Immunities Clause”—by “mandating use of a

18

specific corporate vendor for a valuable state contract.” Pls.’ MSJ at 59. They are wrong because

19

(1) as a factual matter, nothing in Section 8 requires the State to contract with the corporation

20

that owns the Kelley Blue Book (KBB); and (2) even if it did, such an arrangement would not

21

violate the Privileges or Immunities Clause.

22

First, Plaintiffs’ underlying premise—that I-976 requires the State to award a “valuable

23

state contract” to the corporation that owns the KBB—finds no support in the text of the

24

Initiative, but rather is based on Plaintiffs’ assumption about how the State will implement I-976.

25

As Plaintiffs’ materials demonstrate, KBB information is publicly-available and may be used for

26

non-commercial purposes. Hackett Decl. Ex. 6. Plaintiffs’ speculation that “the State will
STATE OF WASHINGTON AND PIERCE
COUNTY’S OPPOSITION TO
PLAINTIFFS’ MOTIONS FOR
SUMMARY JUDGMENT
NO. 19-2-30171-6 SEA

18

ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 1

presumably be required to enter into a single-source contract with KBB” is not a sufficient basis

2

for finding a legal obligation in I-976.

3

Second, even if section 8 did require the State to contract with KBB, it would not be an

4

article I, section 12 problem. A law violates the Privileges or Immunities Clause if it (1) involves

5

a privilege or immunity; and (2) the legislative body lacked a “reasonable ground” for granting

6

the privilege or immunity. Ockletree v. Franciscan Health Sys., 179 Wn.2d 769, 776, 317 P.3d

7

1009 (2014) (plurality). Neither prong is satisfied here.

8

A “privilege or immunity” under the Washington Constitution refers “alone to those

9

fundamental rights which belong to the citizens of [Washington] by reason of such citizenship.”

10

Id. at 778 (quoting State v. Vance, 29 Wash. 435, 458, 70 P. 34 (1902)). Plaintiffs never identify

11

which “privilege or immunity” they claim is at issue here, and there is no plausible argument

12

that the right to provide a method of vehicle valuation is a “fundamental right.” Even if there

13

were, a power or right vested entirely in the legislative body is not a “privilege” at all. See, e.g.,

14

Grant County Fire Protection Dist. No. 5 v. City of Moses Lake, 150 Wn.2d 791, 812-14, 83

15

P.3d 419 (2004). Here, the State has the exclusive power to decide whether to contract with a

16

private entity for vehicle valuation services. See, e.g., Vetenbergs v. City of Seattle, 163 Wn.2d

17

92, 103-104, 178 P.3d 960 (2008) (rejecting argument that city violated article I, section 12 by

18

granting contracts for waste management exclusively to two companies); Peterson v. Dep’t of

19

Rev., 9 Wn. App. 2d 220, 233, 443 P.3d 818 (2019) (article I, section 12 does not apply to

20

contract, and even if it did, fundamental right not implicated by government contract allowing

21

BNSF free use of public railroad tracks). Thus, there is no “privilege” implicated at all here.

22

Lastly, even if a privilege were implicated, there are reasonable grounds for

23

distinguishing between KBB and other entities that might perform vehicle valuation services so

24

that the State may employ a consistent method for determining vehicle valuation. If a legislative

25

body has “reasonable grounds” for making a distinction, there is no violation of article I, section

26

12. Ockletree, 179 Wn.2d at 783.
STATE OF WASHINGTON AND PIERCE
COUNTY’S OPPOSITION TO
PLAINTIFFS’ MOTIONS FOR
SUMMARY JUDGMENT
NO. 19-2-30171-6 SEA

19

ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

H.

Plaintiffs’ Contractual Impairment Claim, Which is Limited to the City of Burien’s
TBD Fees, Should be Denied
Plaintiffs also move for summary judgment as to their contractual impairment claim.

Importantly, Plaintiffs do not contend that I-976 impairs any contracts or bonds other than two
series of bonds issued by the City of Burien in 2010 (the 2010 Burien Bonds). Accordingly, this
claim is limited solely to the TBD fee collected by the City of Burien and does not otherwise
impede the statewide implementation of I-976. See Defs.’ MSJ at 22-23. But even with respect
to the 2010 Burien Bonds, summary judgment is not appropriate at this time.
Article I, section 23 provides that “[n]o . . . law impairing the obligation of contracts shall
ever be passed.” “For an impairment to be found, there must be a ‘contractual relationship,’ and
the law must ‘substantially impair’ that relationship.” Pierce Cty. I, 150 Wn.2d at 437. A critical
part of this inquiry “‘is whether the legislation detrimentally affects the financial framework
which induced the bondholders originally to purchase the bonds.’” Id. at 439 (quoting Tyrpak v.
Daniels, 124 Wn.2d 146, 152, 874 P.2d 1374 (1994)).
In support of their motion for summary judgment, Plaintiffs attach numerous bond
documents as well as the Declaration of Richard Schober, who opines as to the 2010 Burien
Bonds. But as explained in Defendants’ MSJ, there has not yet been any discovery on this issue.
See Defs.’ MSJ at 23 n.3. Indeed, the City of Burien was added as a party to this action after the
parties stipulated to a summary judgment briefing schedule. Id. Given the parties’ agreed
scheduling order, Washington and Pierce County have not had the opportunity to question
Mr. Schober as to his opinions or to have their own expert analyze the 2010 Burien Bonds. Expert
testimony is generally a core part of proceedings on this issue. See, e.g., Municipality of Metro.
Seattle v. O'Brien, 86 Wn.2d 339, 351-52, 544 P.2d 729 (1976) (affidavits from three municipal
bond experts were submitted); Tyrpack, 124 Wn.2d at 150, 157 (the trial court “heard testimony
and arguments from the parties,” including “experts at trial”); Ruano v. Spellman, 81 Wn.2d 820,
827, 505 P.2d 447 (1973) (noting “the effect of the initiative upon the bonds was the subject of

STATE OF WASHINGTON AND PIERCE
COUNTY’S OPPOSITION TO
PLAINTIFFS’ MOTIONS FOR
SUMMARY JUDGMENT
NO. 19-2-30171-6 SEA

20

ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 1

testimony by a municipal bond expert”). Washington and Pierce County should have the

2

opportunity to engage in such expert discovery before summary judgment on this issue is

3

decided. Accordingly, Plaintiffs’ motion for summary judgment on this narrow issue should be

4

denied at this juncture. 4

5

I.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

If the Court Finds Any Part of I-976 Unconstitutional, It Should Sever that Part
from the Rest of the Initiative
If Plaintiffs succeed on any of their constitutional challenges other than the single-subject

challenge, this Court should conduct a severability analysis. 5 An initiative “is not
unconstitutional in its entirety unless invalid provisions are unseverable and it cannot reasonably
be believed that the [People] would have passed one without the other, or unless elimination of
the invalid part would render the remaining part useless to accomplish the legislative purposes.”
McGowan v. State, 148 Wn.2d 278, 294–95, 60 P.3d 67 (2002). A severability clause is
indicative of the voters’ intent to pass the remaining sections even if others are found invalid.
See id. Additionally, “[t]he ‘[i]ndependence of the valid from the invalid parts of an act does not
depend on their being located in separate sections.’” Id. at 295 (quoting 2 Norman J. Singer,
Statutes and Statutory Construction § 44:4 at 578 (6th ed. 2001)). As long as any invalid
provisions are “grammatically, functionally, and volitionally severable,” they should be severed.
Id. Here, section 15 reflects the voters’ intent that any provisions later held to be invalid be
severed from the remainder of the Initiative. I-976, § 15. Thus, to the extent Plaintiffs succeed
in establishing that any sections or subsections are invalid, the Court should proceed to analyze
whether such provisions should be severed.

22
23
24
25
26

Because a ruling by this Court on the parties’ cross-motions for summary judgment may obviate the need
for discovery on this issue, Defendants respectfully request that any discovery on this claim be deferred until after
a ruling on the other claims in this case is issued.
5
The State acknowledges that an initiative that violates the single-subject rule “must be voided” entirely.
City of Burien, 144 Wn.2d at 825. The same is not necessarily true for a subject-in-title violation. See ATU,
142 Wn.2d at 228 (“Where an act contains provisions not fairly encompassed within the title, such provisions are
void . . . . While section 2 of I-695 violates the subject-in-title rule of art. II, § 19, section 3 does not.”).
4

STATE OF WASHINGTON AND PIERCE
COUNTY’S OPPOSITION TO
PLAINTIFFS’ MOTIONS FOR
SUMMARY JUDGMENT
NO. 19-2-30171-6 SEA

21

ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 VI.

1
2
3
4

CONCLUSION

For the foregoing reasons, Plaintiffs and Intervenor-Plaintiffs’ motions for summary
judgment should be denied.
DATED this 24th day of January, 2020.

5

ROBERT W. FERGUSON
Attorney General

6

/s/Alan D. Copsey
ALAN D. COPSEY, WSBA #23305
ALICIA YOUNG, WSBA #35553
KARL SMITH, WSBA #41988
Deputy Solicitors General
LAURYN K. FRAAS, WSBA #53238
Assistant Attorney General
Attorneys for Defendant State of Washington

7
8
9
10
11

MARY ROBNETT
Prosecuting Attorney

12
13

/s/Daniel R. Hamilton
DANIEL R. HAMILTON, WSBA #14658
FRANK A. CORNELIUS, WSBA #29590
Pierce County Prosecutor/Civil
Attorneys for Intervenor-Defendant Pierce County

14
15
16

We certify that this memorandum contains 7,790
words, in compliance with the Local Civil Rules.

17
18
19
20
21
22
23
24
25
26
STATE OF WASHINGTON AND PIERCE
COUNTY’S OPPOSITION TO
PLAINTIFFS’ MOTIONS FOR
SUMMARY JUDGMENT
NO. 19-2-30171-6 SEA

22

ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 CERTIFICATE OF SERVICE

1
2

I hereby declare that on this day true copies of the foregoing document were served via

3

CM/ECF and by email upon the following parties:

4

Contacts for Plaintiff King County:

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Name, Title:
David J. Hackett, Attorney
David J. Eldred, Attorney
Jenifer Merkel, Attorney
Erin B. Jackson, Attorney

Email:
David.hackett@kingcounty.gov
David.eldred@kingcounty.gov
Jenifer.merkel@kingcounty.gov
Erin.Jackson@kingcounty.gov

Contacts for Plaintiff City of Seattle:
Name, Title:
Carolyn U. Boies, Attorney
Erica Franklin, Attorney
John B. Schochet, Attorney
Marisa Johnson, Legal Assistant

Email:
Carolyn.boies@seattle.gov
Erica.franklin@seattle.gov
John.schochet@seattle.gov
Marisa.Johnson@seattle.gov

Contacts for Plaintiffs Washington State Transit Association, Association of Washington
Cities, Port of Seattle, Garfield County Transportation Authority, Intercity Transit,
Amalgamated Transit Union Legislative Council of Washington, and Michael Rogers:
Name, Title:
Paul J. Lawrence, Attorney
Matthew J. Segal, Attorney
Jessica A. Skelton, Attorney
Shae Blood, Attorney
Sydney Henderson, Legal Assistant

Email:
paul.lawrence@pacificalawgroup.com
matthew.segal@pacificalawgroup.com
jessica.skelton@pacificalawgroup.com
shae.blood@pacificalawgroup.com
sydney.henderson@pacificalawgroup.com

Contact for Plaintiff-Intervenors Washington ADAPT, Transit Riders Union, and Climate
Solutions:
Name, Title:
Knoll Lowney, Attorney

Email:
knoll@smithandlowney.com

Contact for Intervenors Permanent Offense, Timothy Donald Eyman, Jack Fagan, and
Michael Fagan:
Name, Title:
Mark D. Kimball, Attorney

Email:
mkimball@mdklaw.com

26
STATE OF WASHINGTON AND PIERCE
COUNTY’S OPPOSITION TO
PLAINTIFFS’ MOTIONS FOR
SUMMARY JUDGMENT
NO. 19-2-30171-6 SEA

23

ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 1
2

Contact for Intervenor Clint Didier:
Name, Title:
Stephen W. Pidgeon, Attorney

Email:
Stephen.pidgeon@comcast.net

3
4

DATED this 24th day of January, 2020, at Seattle, Washington.

5
s/Morgan Mills
MORGAN MILLS
Legal Assistant

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
STATE OF WASHINGTON AND PIERCE
COUNTY’S OPPOSITION TO
PLAINTIFFS’ MOTIONS FOR
SUMMARY JUDGMENT
NO. 19-2-30171-6 SEA

24

ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200