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Supreme Court of the State of Washington

                            Opinion Information Sheet

Docket Number:       73413-5
Title of Case:       Sane Transit et al V Sound Transit
File Date:           03/04/2004
Oral Argument Date:  06/10/2003


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court of King County
Docket No:      02-2-15207-4
Judgment or order under review
Date filed:     11/08/2002
Judge signing:  Hon. John Erlick


                                    JUSTICES
                                    --------
Authored by Gerry L Alexander
Concurring: Faith Ireland
            Barbara A. Madsen
            Bobbe J Bridge
            Susan Owens
            Mary Fairhurst
Dissenting: Charles W. Johnson
            Richard B. Sanders
            Tom Chambers


                                COUNSEL OF RECORD
                                -----------------
Counsel for Appellant(s)
            Bradley H. Bagshaw
            Helsell Fetterman LLP
            1001 4th Ave Ste 4200
            Seattle, WA  98154

            Connie K. Haslam
            Helsell Fetterman LLP
            1001 4th Ave Plaza Ste 4200
            Seattle, WA  98154

            David Florian Jurca
            Helsell Fetterman LLP
            1001 4th Ave Plaza Ste 4200
            Seattle, WA  98154

Counsel for Respondent(s)
            Desmond Leoron Brown
            Sound Transit Union Station
            401 S Jackson St
            Seattle, WA  98104-2826

            Paul J. Lawrence
            Attorney at Law
            925 4th Ave Ste 2900
            Seattle, WA  98104-1158

Amicus Curiae on behalf of King County
            Thomas William Kuffel
            Attorney at Law
            E550 King County Courthouse
            516 3rd Ave
            Seattle, WA  98104-2385

            Noel Reynolds Treat
            King  Co Courthouse
            516 3rd Ave Rm E550
            Seattle, WA  98104-2385

Amicus Curiae on behalf of Association Of Washington Cities
            Sheila Marie Gall
            Association of Washington Cities
            1076 Franklin St SE
            Olympia, WA  98501-1346

SANDERS, J. (dissenting) -- We must determine whether Sound Transit may
construct a light-rail line one-third shorter1 over a period 30 percent
longer than promised to the voters.2  I submit the answer lies in the
measure adopted by the voters.  And the answer is no.
Ultimately, the question is what authority the voters of the regional
transit district delegated to Sound Transit.  Three documents are relevant:
(1) the eight-page brochure describing the systems plan sent to the voters
as required by RCW 81.104.140(8); (2) the local voters pamphlet prepared
according to RCW 81.104.140(9) and former RCW 29.81A.040 (1984) (recodified
at RCW 29A.32.240 by Laws of 2003, ch. 111, sec. 816); and (3) Resolution
75 (including all of its incorporated provisions).
Any analysis of voter intent must necessarily begin with what legislation
the voters adopted, i.e., what was actually presented to the voters.  See
Louthan v. King County, 94 Wn.2d 422, 430, 617 P.2d 977 (1980) ("What is
authorized depends upon what is submitted to the electorate."); Amalgamated
Transit Union Local 587 v. State, 142 Wn.2d 183, 205, 11 P.3d 762, 27 P.3d
608 (2000) ("In determining intent from the language of the statute, the
court focuses on the language as the average informed voter voting on the
initiative would read it.").  Consequently, the analysis initially focuses
on the eight-page brochure describing the plan mailed to each voter as
required by the special high-capacity transportation statute.

I.   The Eight-Page Brochure Mailed to the Voters Is the Measure Adopted By
the Voters.

We have consistently followed the principle that government agencies may
not substantially deviate from building the project approved by the voters.
See O'Byrne v. City of Spokane, 67 Wn.2d 132, 136, 406 P.2d 595 (1965);
George v. City of Anacortes, 147 Wash. 242, 245, 265 P. 477 (1928); Hayes
v. City of Seattle, 120 Wash. 372, 375, 207 P. 607 (1922); Thompson v.
Pierce County, 113 Wash. 237, 241, 193 P. 706 (1920).  And we construe
taxing initiatives and propositions "as the average informed lay voter
would read" them.  In re Estate of Hitchman, 100 Wn.2d 464, 467, 670 P.2d
655 (1983).
A.   High-Capacity Transportation System Planning Is a Unique Process That
Requires Unique Notification to the Voters.

Chapter 81.104 RCW provides the exclusive and mandatory procedure a
regional transit authority must follow to seek voter approval for increased
taxation to build a high-capacity transportation system.  This procedure is
unique and distinct from normal proposition measures submitted to the
voters.  Cf. RCW 17.28.252 (mosquito control districts); RCW 27.12.222
(rural county library districts); RCW 28A.540.060 (school districts).
In 1991 the legislature enacted Engrossed Substitute House Bill 2151,
which, inter alia, amended various sections within chapter 81.104 RCW.  See
Laws of 1991, ch. 318, sec.sec. 1-12.  The bill's primary focus was to
differentiate between various aspects of the planning process, namely
system planning, project planning, and finance planning.  See id. sec.sec.
9-10 (codified as amended at RCW 81.104.100-.110).3  While project planning
involved specific details, see RCW 81.104.100(3), the system plan must
contain specific elements:
(d) The system plan submitted to the voters pursuant to RCW 81.104.140
shall address, but is not limited to the following issues:

(i) Identification of level and types of high capacity transportation
services to be provided;

(ii) A plan of high occupancy vehicle lanes to be constructed;

(iii) Identification of route alignments and station locations with
sufficient specificity to permit calculation of costs, ridership, and
system impacts;

(iv) Performance characteristics of technologies in the system plan;

(v) Patronage forecasts;

(vi) A financing plan describing:  Phasing of investments; capital and
operating costs and expected revenues; cost-effectiveness represented by a
total cost per system rider and new rider estimate; estimated ridership and
the cost of service for each individual high capacity line; and
identification of the operating revenue to operating expense ratio.

The financing plan shall specifically differentiate the proposed use of
funds between high capacity transportation facilities and services, and
high occupancy vehicle facilities;

(vii) Description of the relationship between the high capacity
transportation system plan and adopted land use plans;

(viii) An assessment of social, economic, and environmental impacts; and

(ix) Mobility characteristics of the system presented, including but not
limited to:  Qualitative description of system/service philosophy and
impacts; qualitative system reliability; travel time and number of
transfers between selected residential, employment, and activity centers;
and system and activity center mode splits.

RCW 81.104.100(2)(d) (emphasis added).  The phrase "but is not limited to"
necessarily permits full disclosure of all other material terms submitted
to the voters within or beyond the mandatory elements delineated in RCW
81.104.100(2)(d).
As one of those elements is a "financing plan," RCW 81.104.100(2)(d)(vi),
subsumed within that element is what contingencies or qualifications, if
any, the transit authority might make in the event of insufficient funding.
Terms which reserve a discretionary power are generally unlawful unless
disclosed up front.  See Thompson, 113 Wash. at 241.
Most importantly for the issue at hand, ESHB 2151 added what is now RCW
81.104.140(8).  See Laws of 1991, ch. 318, sec. 11.  That section imposes
an express duty upon the regional transit authority seeking dedicated
funding for a high-capacity transportation system to mail a document
(brochure) descriptive of the plan to each registered voter in the
designated area:
(8) Agencies shall provide to the registered voters in the area a document
describing the systems plan and the financing plan set forth in RCW
81.104.100.  It shall also describe the relationship of the system to
regional issues such as development density at station locations and
activity centers, and the interrelationship of the system to adopted land
use and transportation demand management goals within the region. This
document shall be provided to the voters at least twenty days prior to the
date of the election.

RCW 81.104.140(8).  This requisite statutory disclosure of the systems plan
requires a mailing to the voters setting forth at least the major elements
required in the systems plan, which necessarily includes, at the very
least, a description of the physical location of the planned improvement,
and a time frame for its construction.  See RCW 81.104.100(2)(d)(iii),
.100(2)(d)(vi), .100(2)(d)(viii).
Nothing in RCW 81.104.140(8) indicates the legislature desired anything
less than full disclosure to the electorate of at least the essentials of
the system plan.  And obviously the section would be meaningless if the
transit authority were allowed to affirmatively misrepresent the plan.
While the transit authority need not spell out the details of the project
plan, it is required to describe the material terms to the system plan,
which certainly includes the length and location of the proposed facilities
as well as the completion date.  RCW 81.104.100(2)(d)(iii), .100(2)(d)(vi),
.100(2)(d)(viii).  This brochure did exactly that.  The eight-page brochure
Sound Transit mailed to the voters pursuant to statute is, as a matter of
law, a descriptive summary of the actual plan submitted to the voters for
adoption.  And, as a matter of law, it is what the voters voted on.
B.   The Plan Submitted to the Voters Pursuant to Statute Unequivocally and
Unconditionally Promised a Light-Rail Line From the University District to
Sea-Tac in 10 Years.

The eight-page document identified itself as "{a} proposal to the citizens
by the Regional Transit Authority," Clerk's Papers (CP) at 297 (emphasis
added), representing itself as the citizen's "guide to the Central Puget
Sound Regional Transit Authority's proposal to increase our transportation
system capacity by offering new choices for getting around the region."
Id.  The document specifically referenced itself as the document required
by RCW 81.104.140(8).
The brochure unequivocally and without qualification promised "25 miles of
light-rail with 26 stations within walking distance of major regional
destinations."  CP at 300.4  Some of the major destinations expressly
included:
    Education - the University of Washington, the UW Tacoma Campus,
Seattle Central Community College, Seattle University and potentially North
Seattle Community College.

    Health care - the UW Medical Center, Swedish Hospital, Harborview and
Virginia Mason.
    Cultural, convention and sports facilities - the Seattle Art Museum,
the Tacoma Theater District, the new Washington State History Museum, Husky
Stadium, the Kingdome, the Tacoma Dome, the Washington State Convention &
Trade Center, Seattle Center (via Monorail connection) and Benaroya Hall
(the new Seattle Symphony hall).
    Other transportation - Sea-Tac Airport, Colman Dock (the Washington
State Ferries), King Street Station (commuter rail and Amtrak), the
Monorail, Seattle's Waterfront Streetcar and a Tacoma Dome regional
transportation terminal.
Id.  Sound Transit expressly assured voters in this brochure the light-rail
would run "from downtown Seattle to the University District (the second
largest employment center and transit market in the region) through First
Hill and Capitol Hill -- two of the largest transit markets in the region."
CP at 301.
The brochure was represented by Sound Transit as a "Ten-Year Regional
Transit System Plan," CP at 297, made on express representations  that
Sound Transit was "committed to completing {the project} within ten years
of voter approval," CP at 303.
Yet in a shocking turn of events those voters in the University District,
First Hill, Capitol Hill, and Sea-Tac who voted in justified reliance on
the statutory brochure to be taxed for Sound Transit to construct a means
of traveling to and from the expressly listed destinations were betrayed.
They are now faced with the reality these destinations are not to be served
at all.  Nothing in the mailed brochure self-identified as the "proposal to
the citizens," CP at 297, alerted them to this possibility in any way,
shape, or form.  Moreover, the brochure expressly stated exactly the
opposite.  Indeed, a voter examining the eight-page brochure would see that
Sound Transit would service the area designated without qualification.
Even the financing was guaranteed:
An independent expert review panel appointed by the governor and the state
Legislature has stated that Sound Move ridership and cost estimates are
conservative.

Project costs and revenues for Sound Move have been carefully estimated to
provide a cushion in case there are unforeseen expenses or changes in
revenues.

. . . .

Sound Move ten-year estimates include all costs to build and run the system
including community planning, engineering, design, environmental
mitigation, full accessibility, safety features, station amenities, and a
contingency for unforeseen expenses.

CP at 303 (emphasis added).  There was no hint of shortfall -- and there
were express representations to the contrary!  Nowhere did the eight-page
brochure state or imply Sound Transit's service plan would or could be
scaled back at all, much less by one-third.
Relying on this brochure, no voter could possibly have suspected Sound
Transit had a hidden agenda to scale back the project and extend its time
of completion should it run out of money, an eventuality which was
expressly disclaimed in and of itself.  The plan described in this brochure
unequivocally, unconditionally, and categorically promised the voters Sound
Transit would have more than enough money to build 21 miles of light-rail
from the University District to Sea-Tac in 10 years.  There was no mention
of Resolution 75 in fact, form, or substance.  That Sound Transit elected
to withhold any hint of its now asserted discretionary power from the
voters in the eight-page brochure means that alleged discretionary power
was neither submitted to nor possibly approved by the voters.  The failure
to include this purported reserved discretion precludes its existence as a
matter of law as the voters could not approve a power that was never
submitted to them, and one which could substantially change the whole
system submitted for approval.  Louthan, 94 Wn.2d at 430.  Voters simply
could not, and did not, approve something substantially different than what
was expressly and without qualification represented in the statutory plan
brochure.
Necessary to the majority's holding is its claim the voters pamphlet and
the eight-page brochure "were not sufficient to inform the voters of the
detailed aspects of a multi-billion dollar transportation and financing
plan, and could not be considered enabling legislation."  Majority at 12
(emphasis added).  If we were speaking only of "details" the majority might
have a point.  But, to the contrary, we are talking about direct and
unqualified representations that go to the heart of the plan, i.e., "{t}he
plan includes 25 miles of light-rail," CP at 300, and that Sound Transit
would complete the project "within ten years of voter approval," id. at
303.  These were the very features that distinguished it from the prior
plan rejected by the voters.
In sum, the legislature mandated the regional transit authority to submit
to the voters a description of the system it proposed to build.  RCW
81.104.140(8).  Sound Transit did just that, and the voters were entitled
to rely upon the unconditional, unqualified, and unequivocal promises Sound
Transit made for a "north-south light-rail system" running from the
University District to Sea-Tac, CP at 300, that would be "complet{ed} . . .
within ten years of voter approval," id. at 303.  If Sound Transit had a
secret agenda, that agenda was never submitted to, much less adopted by,
the electorate.  This should end the case.

II.  The Voters Pamphlet Buttresses the Conclusion That Sound Transit Would
Unconditionally Build a 21-Mile Light-Rail Line in 10 Years.

Although the aforementioned statutory proposal/brochure is legally
dispositive of what the voters actually adopted, the voters pamphlet5 is
not to the contrary.  Like the "document describing the systems plan and
the financing plan," RCW 81.104.140(8), Sound Transit was required to
produce and submit to the voters a "local voter's pamphlet."  RCW
81.104.140(9) (emphasis added).  Sound Transit did not produce a local
voters pamphlet but rather included its proposition in a statewide voters
pamphlet.
It may be appropriate to consider the language in the voters pamphlet for
ascertaining voter intent when the language of the proposed initiative is
ambiguous.  Amalgamated Transit, 142 Wn.2d at 205-06.  When ambiguous as to
what the proposed initiative actually is, "arguments made in pamphlets for
and against an initiative measure might be considered by the court in
determining the purpose and intent of the act."  Bayha v. Pub. Util. Dist.
No. 1 of Grays Harbor County, 2 Wn.2d 85, 98, 97 P.2d 614 (1939).
This voters pamphlet contained the ballot title, an explanatory statement
prepared by the prosecuting attorney, and arguments for and against the
proposal.  The explanatory statement provided:
RTA's Proposition 1 would implement the ten-year regional transit system
plan for new rail and bus rapid transit in urban King, Snohomish, and
Pierce counties.

. . . .

Electric light rail would provide all-day, frequent, two-way service to
employment, retail and residential centers, including between SeaTac, Sea-
Tac Airport, Tukwila, Southeast Seattle, downtown Seattle, First Hill,
Capitol Hill, University District (and, if additional funding is secured,
Roosevelt District and Northgate); and between downtown Tacoma and Tacoma
Dome.

. . . .

The transit system would be built and operated using local taxes, federal
grants, municipal bonds, and fares.  A sales tax increase of four-tenths of
one percent and a motor vehicle excise tax increase of three-tenths of one
percent would provide the local funding, costing the average-income
household about $8/month (1995 dollars).  No property tax would be used.

CP at 60; see also CP at 668 (identical language for King County).  Note
that the areas served by light-rail and a 10-year completion date were set
forth further without qualification, by a neutral party, the prosecuting
attorney.  See former RCW 29.81A.040(3).
Moreover, the argument for adopting the proposal assured the voters the 10-
year plan was just that as it would "be finished sooner" than the 1995
16-year proposed plan the voters rejected.  CP at 60; see also CP at 668
(identical language for King County).  Early completion was a major selling
point to seduce voter approval.
Resembling the form of the eight-page brochure, nowhere in the voters
pamphlet was any indication Sound Transit planned or reserved authority to
shorten the light-rail line or extend its completion date for any reason.
One must necessarily conclude then Sound Transit sought approval to build
an electric light-rail connecting Sea-Tac to the University District and
that project would be completed within 10 years.  So much is plain from a
textual reading of the voters pamphlet.

III. Resolution 75 Cannot Be the Measure Enacted By the Voters, But Even
Assuming That It Was, It Does Not Allow Substantial Deviation From the 10-
Year Commitment.

The majority neatly utilizes a creative incorporation by reference approach
to find voter intent to adopt Resolution 75, the only basis for granting
Sound Transit the discretion to shorten the line.  Yet even if Resolution
75 were fully incorporated into the ballot title -- the only place it was
even mentioned to the voters -- one still must conclude Sound Transit was
obligated to complete the light-rail line within 10 years of voter approval
as not even Resolution 75 allows for that eventuality.  Nevertheless, I
posit Resolution 75 was never adopted in the first place, as a matter of
law.
A.   Resolution 75 Was Not Adopted By the Voters.

The majority concludes, "Resolution 75 . is the legislation adopted by the
voters."  Majority at 12.  However, state law, statutory construction
principles, and basic grammar dictate otherwise.
1.   The voters pamphlet, to be lawful, must provide the text of the
measure to be enacted and the text of Resolution 75 was not included.

By statute the local voters pamphlet submitted by a regional transit
authority "shall include," inter alia, "{t}he text of each measure." RCW
29.81A.040, .040(3) (emphasis added); see also RCW 81.104.140(9) (mandating
the local voters pamphlet comply with chapter 29.81A RCW).  "Shall" is
unequivocally mandatory language.  Erection Co. v. Dep't of Labor & Indus.,
121 Wn.2d 513, 518, 852 P.2d 288 (1993); see also Miller v. French, 530
U.S. 327, 337, 120 S. Ct. 2246, 147 L. Ed. 2d 326 (2000) (holding a
contrary interpretation of "shall" "would subvert the plain meaning of the
statute, making its mandatory language merely permissive").
The facts plainly show, however, Sound Transit did not include any text
from Resolution 75 in the voters pamphlet.  The trial court characterized
this fact as a challenge to the validity of the local voters pamphlet,
concluding the "full text" was not required because the statute governing
the contents of a statewide voters pamphlet requires "the full text of each
measure."  CP at 860 (quoting RCW 29.81.250(10)).  If "text" means anything
short of "full text," then it must mean at least some text.  But here there
was no text from Resolution 75.  It is simply absurd to therefore claim the
text of Resolution 75, or any part thereof, need not be included in the
voters pamphlet.    And courts must avoid absurd results when interpreting
statutes.  See State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003).
"Text" can mean only the actual language of the legislation to be adopted.
See United States v. Nordic Vill., Inc., 503 U.S. 30, 37, 112 S. Ct. 1011,
117 L. Ed. 2d 181 (1992) (recognizing difference between enacted text and
mere legislative history); see also Webster's Third New International
Dictionary 2365-66 (1981) (defining "text" as "the main body of printed or
written matter on a page exclusive of headings, running title, footnotes,
illustrations, or margins").  And to find ambiguity as the trial court did
strains the statute in a manner this court abhors.  See Kilian v. Atkinson,
147 Wn.2d 16, 20-21, 50 P.3d 638 (2002) ("A statute . is not ambiguous
simply because different interpretations are conceivable.").  Moreover,
local voters pamphlets must comply with the requirements of state voters
pamphlets whenever the provisions of chapter 29.81 RCW apply.  RCW
29.81A.010.  To conclude local voters pamphlets need not provide the text
of the measures proposed would render RCW 29.81A.010 meaningless.
The majority concedes the pamphlet did not contain the text of Resolution
75 but finds it sufficient that the pamphlet informed the voters where to
request the text of the measure.  If that were the case, the legislature
has wasted taxpayer dollars by filling the volumes of the Revised Code of
Washington with requirements that voters pamphlets contain the "text of
each measure" proposed to the voters.  RCW 29.81.250(10); 29.81A.040(3).
The notice requirement is simply not satisfied if the taxing authority
merely provides the voters with a treasure map to find the proposed
legislation.
The majority holds Resolution 75 must be the proposal enacted by the people
because ballot titles "`must . clearly identify the proposition to be voted
on.'"  Majority at 10 (quoting RCW 29.79.035(1)).  If the majority wants to
be consistent, however, it must hold the "text of {the} measure" cannot be
Resolution 75 because that measure was not included in the voters pamphlet,
RCW 29.81A.040(3), unless the majority claims the voters pamphlet was
illegal (which it doesn't).6
Instructive to this analysis is Mervyn's v. Reyes, 69 Cal. App. 4th 93, 81
Cal. Rptr. 2d 148 (1998).  There the city provided only a summary of the
provision to be enacted but did not attach the actual text to the
initiative petition.  Id. at 97.  The California Court of Appeal
invalidated the initiative petition because state law required, "`The first
page of each section shall contain the title of the petition and the text
of the measure.'"  Id. at 99 (emphasis in original) (quoting Cal. Elec.
sec. 9201).  The court reasoned, "The purpose of the full text requirement
is to provide sufficient information so that registered voters can
intelligently evaluate whether to sign the initiative petition and to avoid
confusion."  Id.
Makes sense.  The same reasoning applies here.  Washington law requires the
"text of each measure" to be included in the local voters pamphlet in order
to fully apprise the electorate of the measure to be adopted or rejected.
RCW 29.81A.040(3) (emphasis added).  Though we have recognized the
probability that not every voter reads the text of the measure proposed or
the explanatory statement, In re Ballot Title for Initiative 333 v. Gorton,
88 Wn.2d 192, 198, 558 P.2d 248, 559 P.2d 562 (1977), to hold the text of a
measure need not be included subverts the express legislative mandate
governing voters pamphlets.  What lengths the majority takes to uphold this
scheme!
It is fundamental that governments have no power to divert tax dollars for
a purpose other than that authorized.  Thompson, 113 Wash. at 241.  It
logically follows then that the government must forthrightly provide all
terms to which it seeks the electorate's consent.  "The question is one of
construction of contract, and that contract is expressed in the original
ordinance.  If the terms of that instrument do not permit the proposed
change, then it cannot be made, regardless of the advantages which might
result."  Hayes, 120 Wash. at 375.  Applying contract principles, we have
recognized contracts are invalid where "`the important terms {are} hidden
in a maze of fine print.'"  Schroeder v. Fageol Motors, Inc., 86 Wn.2d 256,
260, 544 P.2d 20 (1975) (quoting Williams v. Walker-Thomas Furniture Co.,
350 F.2d 445, 449 (D.C. Cir. 1965)).  The terms Sound Transit claims were
most crucial to this contract (Section 2 of Resolution 75) were hidden not
just in a maze of fine print but also in a physical maze leading to the
respective county auditors offices.  Yet the majority circuitously approves
this approach notwithstanding the flagrant lack of disclosure.  Such a
conclusion defies the law governing voters pamphlets designed to foster
full voter awareness and open government.
As the text of Resolution 75 was not included in the voters pamphlet, it
was obviously not a part of it, and therefore not part of the "measure" to
be adopted by the voters.  Former RCW 29.81A.040.
2.   Statutory construction principles mandate at most only the taxing
provisions of Resolution 75 were adopted.

The majority also reasons Resolution 75 was the measure adopted by the
voters because "the ballot title informed the voters that Resolution 75 was
the proposal to be enacted, and the resolution was available for
consideration by request to the office identified in the voters' pamphlet."
Majority at 11.  Even if we were to operate under the assumption the
legislature did not really mean what it said by requiring "the text of each
measure" to be included in the local voters pamphlet, RCW 29.81A.040(3), I
still do not read the ballot title to incorporate Section 2 of Resolution
75, much less every clause thereof.
We adhere to the "fundamental precept{}" that any ambiguities in taxing
statutes are construed "most strongly against the government and in favor
of the taxpayer."  Dep't of Revenue v. Hoppe, 82 Wn.2d 549, 552, 512 P.2d
1094 (1973).  Hoppe considered the scope of SJR No. 1 (now amendment 55 to
the state constitution), which imposed a constitutional one percent limit
of true and fair value on the maximum allowable rate of regular property
tax levies.  Hoppe, 82 Wn.2d at 550-51.  We rejected the State's argument
that the limitation applied only to those taxes levied after the effective
date because no language in the amendment purported to restrict it to a
specific time.  Id. at 553.  Following the canon to construe legislation
enacted by the people in accord with the views of the "average informed
voter," we stated:
A conscientious voter who read every word of the text of SJR 1, the ballot
title, the official explanation of the effect of the measure and the
statement for the proposal would not find a whisper of suggestion that its
impact would not be felt until 1974.  We refuse to attribute to the average
informed voter or even the better-than-average informed voter the legal
theory that the proposed amendment hinged on the complex scheme of levying
taxes in one year and collecting them in the next year, so that all taxes
levied in 1972 were beyond the reach of SJR 1.  If that was intended by the
drafters of the measure, it would have been simple to say so.

Id. at 555 (emphasis added).  Our reasoning accords with the United States
Supreme Court, which declared over 80 years ago:
In the interpretation of statutes levying taxes it is the established rule
not to extend their provisions, by implication, beyond the clear import of
the language used, or to enlarge their operations so as to embrace matters
not specifically pointed out. In case of doubt they are construed most
strongly against the Government, and in favor of the citizen.

Gould v. Gould, 245 U.S. 151, 153, 38 S. Ct. 53, 62 L. Ed. 211 (1917)
(emphasis added).
If we are to construe this taxing legislation literally, much less
"strongly against the {g}overnment," then we must carefully examine the
only reference to Resolution 75 that was given to the voters to determine
which, if any, provisions of Resolution 75 were "specifically pointed out"
to the voters.  Id., Hoppe, 82 Wn.2d at 552.  The ballot title provided:
To implement a regional rail and express bus system linking Tacoma,
Seattle, Bellevue, Everett, other cities, and Sea-Tac airport, shall the
Regional Transit Authority impose a sales and use tax of up to four-tenths
of one percent and a motor vehicle excise tax of three-tenths of one
percent to provide the local share of funding towards the $3.9 billion
estimated cost of the system, as provided in Resolution 75 and the "Ten-
Year Regional Transit Plan"?

CP at 60 (emphasis added); see also CP at 668 (identical provision for King
County).  The only provision of Resolution 75 "specifically pointed out" to
the voters was the imposition of sales and motor vehicle excise taxes.
Even assuming some portion of Resolution 75 was incorporated, it was at
most only that.
This is also compelled by the ordinary rules of grammar, such as the last
antecedent rule, rules both we and the United States Supreme Court employ
to construe legislation.  Accord Caughey v. Employment Sec. Dep't, 81 Wn.2d
597, 602, 503 P.2d 460 (1972); see also Barnhart v. Thomas, -- U.S. --, 124
S. Ct. 376, 380-81, 157 L. Ed. 2d 333 (2003).  "The last antecedent rule
provides that, unless a contrary intention appears in the statute,
qualifying words and phrases refer to the last antecedent."  In re Sehome
Park Care Ctr., Inc., 127 Wn.2d 774, 781, 903 P.2d 443 (1995).7  The phrase
"as provided in Resolution 75 and the `Ten-Year Regional Transit Plan'" in
the ballot title is a qualifier which applies only to the last antecedent,
namely the "impos{ition of} a sales and use tax of up to four-tenths of one
percent and a motor vehicle excise tax of three-tenths of one percent to
provide the local share of funding towards the $3.9 billion estimated cost
of the system."  CP at 60, 562.  That last antecedent is set off by a comma
from the purported purpose of the proposition, namely the "implement{ion
of} a regional rail and express bus system linking Tacoma, Seattle,
Bellevue, Everett, other cities, and Sea-Tac airport."  Id.  "A comma
serves many functions, but its purpose always is to set a phrase apart from
the rest of the sentence."  E. Gig Harbor Imp. Ass'n v. Pierce County, 106
Wn.2d 707, 713, 724 P.2d 1009 (1986).  Thus, the phrase "as provided in
Resolution 75 and the `Ten-Year Regional Transit Plan'" applies only to
that antecedent surrounded by commas, namely the increase in sales taxes
and motor vehicle excise taxes.  This is the most relevance the ballot
title can attribute to Resolution 75, and there was no mention of the
resolution in any other document provided to the voters.  Had the ballot
title provided language such as "Resolution 75 is incorporated in full by
reference" it could at least be asserted the ballot title identified, or
included by reference, portions of Resolution 75 helpful to the majority.
But the ballot title did not say that, nor can the majority's argument hold
water without a rewrite.
3.   The ballot title could not have incorporated all of Resolution 75
because its provisions identified Proposition 1 and the Eight-Page Brochure
as the proposal.

Even further negating the majority's incorporation of Resolution 75 are the
terms of that Resolution itself.  The majority elects to incorporate
Section 2 of Resolution 75, but the ballot title makes no reference to the
resolution outside the context of taxes.
To assert all of Resolution 75 was adopted means the voters must have also
approved Section 6, which directs Proposition 1 to "be submitted to the
voters at the general election to be held within the RTA district on
November 5, 1996."  CP at 415.  In essence this would mean the voters
elected to submit an approved measure to themselves for approval.
Nonsense.8
Thus, the question becomes which provisions of Resolution 75, if any, were
incorporated into the measure adopted by the voters?  Although the real
answer is none, at most the answer is guided by Gould:  only those
"specifically pointed out" to the voters.  Gould, 245 U.S. at 153.  Merely
because Sound Transit internally adopted Resolution 75 does not necessarily
indicate the voters also adopted it.  And it is the voters whose approval
is relevant.  Discretionary authority to reduce the system size by one-
third was never delegated to Sound Transit by the voters.
B.   The Text of Resolution 75 Directly Contradicts What Was Approved by
the Voters.

Even assuming the voters adopted a portion of a measure they did not see,
that portion cannot be squared with the language of the brochure which was
sent to every voter within the RTA district.  It bears repeating that if
Resolution 75 is a taxing proposal to the people then it must be strictly
construed against Sound Transit and in favor of the taxpayers.  Hoppe, 82
Wn.2d at 552.
Section 2 of Resolution 75, upon which the majority and Sound Transit rely,
provides in relevant part:
In the event that the proceeds of federal contributions, plus any other
moneys of the RTA legally available, are insufficient to accomplish all of
the capital improvements provided by this Resolution, the RTA shall use the
available funds for paying the cost of those improvements that are
contained in the Ten-Year Regional Transit System Plan and are deemed by
the Board to be most necessary and in the best interests of the RTA after
consideration of the financial policies approved by Resolution No. 72.  In
the event that the Ten-Year Regional Transit System Plan improvements, or
some portion thereof, are impractical to accomplish due to changed
conditions or force majeure events, the RTA may use the available funds to
pay principal of or interest on bonds, to reduce tax levies, or to pay for
other capital and/or service improvements that achieve the stated goals of
said plan, as the Board in its discretion shall determine as appropriate or
necessary in accordance with law and Board policy.

CP at 415 (emphasis added).  The first clause of section 2 references
"insufficient funding" as a prerequisite to the discretionary authority
Sound Transit has now employed.  Id.  That reference, however, directly
contradicts the eight-page brochure's unqualified promise that Sound
Transit would have more than enough money to complete the project
completely and on time.  See supra Part I.B.  Given a choice between the
government's unequivocal promise that money would be sufficient and alleged
reserved discretion based on a contingency for insufficient funding, Hoppe
dictates we construe the provision "most strongly against the government
and in favor of the taxpayer."  Hoppe, 82 Wn.2d at 552.
C.   Resolution 75 provides no authority to extend the completion date.

But ultimately nothing enacted nor hidden from the voters excuses Sound
Transit from substantially deviating from the promised 10-year completion
date.  It bears repeating that we do not impute complex legal distinctions
on the "average informed voter."  Hoppe, 82 Wn.2d at 555.
The majority reads Resolution 75 in piecemeal fashion, grasping on to
section 2's grant of discretionary authority to alter the project but
tossing away the pervasive references to a 10-year commitment.  References
within Resolution 75 to a time frame for Sound Move include those labeling
the plan what it is:  a "Ten-Year Regional Transit System Plan."  See CP at
413 (dubbing itself as "A RESOLUTION . calling an election to approve local
taxes to implement a Ten-Year Regional Transit System Plan") (emphasis
added); CP at 414 (section 1, "requir{ing} the RTA to implement the Ten-
Year Regional Transit System Plan" and authorizing the Board to issue bonds
"in accordance with the Ten-Year Regional Transit System Plan") (emphasis
added).  Section 5 is even more specific:
Section 5.  To ensure that the ten-year development and implementation
program occurs within the framework and intent of the financial policies
approved by Resolution 72, the RTA will conduct an annual comprehensive
performance audit through independent audit services and appoint and
maintain a citizens' oversight committee for the ten-year construction
period.  The oversight committee is charged with an annual review of the
RTA's performance audit and financial plan and for reporting and
recommendations to the Board.

CP at 415 (emphasis added).
As if this were not enough, Section 3 of that same resolution itself
purported to incorporate by reference Resolution 73.  That resolution was
Sound Transit's adoption of "Ten-Year Regional Transit System Plan," which
was formulated in response to losing the election in 1995.  Page 6 of Sound
Transit's full plan states, in unequivocal terms:
System completion within ten years -- different parts and segments of the
plan will be implemented in stages and be operational as soon as possible;
the entire system will be completed and operational in ten years.

CP at 26 (emphasis added).  Even if the voters adopted Resolution No. 75
and all of its incorporated provisions, then we must also conclude the
voters adopted the 10-year language as well, and certainly did not repeal
all references to 10 years in the brochure, pamphlet, and Resolution 75
itself.
The majority states, "Declarations of principles, purposes and aims are not
operative rules of action and do not give rise to enforceable rights or
create legal obligations."  Majority at 14 (citing Melville v. State, 115
Wn.2d 34, 38, 793 P.2d 952 (1990), Int'l Union of Operating Eng'rs Local
286 v. Sand Point Country Club, 83 Wn.2d 498, 505, 519 P.2d 985 (1974), and
Whatcom County v. Langlie, 40 Wn.2d 855, 863, 246 P.2d 836 (1952)).
Certainly this is a correct statement of the law, adequately supported by
authority.  But to properly apply that rule to this case requires the
majority to find promises by Sound Transit such as "the entire system will
be completed and operational within ten years," CP at 26, "The ten-year
timeframe for putting the plan in place begins the day after voters approve
funding for the new regional transit system," CP at 45, are "merely
declarations of the principles of the plan," majority at 16, and not
descriptive of the plan itself.  That is untenable since the 10-year
construction time was offered as an express inducement to adopt this plan
whereas the prior plan with a longer completion date had been rejected.
There were two fundamental changes from the 1995 proposal rejected by the
voters and the 1996 proposal adopted:  (1) the reduced cost and (2) the
reduced time frame.  See CP at 668 (local voters pamphlet stating "The new
regional express plan is smaller than last year's proposal and will be
finished sooner.") (emphasis added).
It is not the function of this court to decide what aspects of a ballot
measure appealed to the voters.  Such is contrary to our decision in George
v. City of Anacortes, 147 Wash. 242, 265 P. 477 (1928), where we overturned
the City of Anacortes' decision to move construction of a water main three
blocks, reasoning:
{W}e think {the mere movement of the water main's location} mistakes the
project as being one of several items each standing by itself, rather than
one project composed of several items related to each other and endorsed
and approved as a whole by the voters.  There is no way of knowing just
what portion of the project appealed to the voters.  It may be, that the
laying of the main on 20th street was considered of primary importance to a
great many, and if that item had not been included they would have refused
endorsement of the project.

Id. at 245 (emphasis added).  Similarly, the aspect of the reduced time
frame may have been "considered of primary importance" to many of the
voters here, id., had Sound Transit indicated the construction might have
taken 13 years as opposed to 10, the project would not have been approved.
If a 33 percent decrease in the length of the line is a substantial
deviation, see majority at 7 ("no disagreement" over whether 14-mile line
is a substantial deviation from the promised 21-mile line), then a 30
percent increase in the time for completion is as well.  As I see nothing
in any measure -- shown to the voters or not -- that grants Sound Transit
the discretion to extend the time frame beyond 10 years.  I would hold the
government to its word just as I would hold any private person to his or
her word.
CONCLUSION

Our constitution begins by declaring, "All political power is inherent in
the people, and governments derive their just powers from the consent of
the governed, and are established to protect and maintain individual
rights."  Const. art. I, sec. 1 (emphasis added).  It is axiomatic then
that when the governed consent to be taxed for a specific purpose, the
government may not substantially deviate from that purpose.  Accord
O'Byrne, 67 Wn.2d at 136; Thompson, 113 Wash. at 241.  In 1995 the
electorate rejected a 16-year time frame for a $6.9 billion light-rail line
but acquiesced 1 year later to a shorter timeframe (10 years) and smaller
price tag ($3.9 billion).  Yet the majority now permits the taxing
authority, Sound Transit, to use a 30 percent longer time than promised to
construct a light-rail line one-third shorter than promised.  As I fail to
see how the people consented to such a deviation for all the reasons
enumerated, I would reverse the trial court and order Sound Transit to seek
the requisite consent if it desires to continue down this track.  But it is
not our role to help Sound Transit railroad the voters.
I dissent.

1 14 miles rather than 21.
2 13 years rather than 10.
3 Additionally, the House Bill Report elucidates part of the bill's
purpose:
A regional HCT {high-capacity transportation} implementation program is to
include a system plan, a project plan, and a financing plan.  A new
distinction is drawn between HCT system planning and project planning.
System planning is the detailed evaluation of a range of HCT system
options, including doing nothing, a low capital investment, and ranges of
higher capital investments.  The system planning effort is to include
estimates of costs, ridership, and service levels, as well as a financing
plan.
Project planning is detailed identification of alignments, station
locations, equipment and systems, construction schedules, costs and
environmental effects.
H.B. Rep. on ESHB 2151, at 2, 52d Leg., Reg. Sess. (Wash. 1991) (emphasis
added).
4 Presumably, the 25 miles reflects the originally planned route, which was
seemingly shortened to allow the light-rail to travel by tunnel through
Beacon Hill, rather than around the north end of Beacon Hill and into
Rainer Valley.  See Decl. of Joni Earl at 6.  Moreover, the 25 miles
included the Tacoma light-rail, which is not the subject of this appeal.
Excluding this, the rail line in King County was at least 21 miles long.
5 This notice requirement stems from our constitution which directs the
legislature to:
provide methods of publicity of all laws or parts of laws, and amendments
to the Constitution referred to the people with arguments for and against
the laws and amendments so referred. The secretary of state shall . make
such . distribution as he shall determine necessary to reasonably assure
that each voter will have an opportunity to study the measures prior to
election.
Const. art. II, sec. 1(e) (amend. 72) (emphasis added).
6 Contrary to the majority's assertion, it is not "inconsistent{}" to hold
the eight-page brochure as enabling legislation while simultaneously
rejecting Resolution 75 for not appearing in the voters' pamphlet.  See
majority at 12 n.8.  The eight-page brochure is required by RCW
81.104.140(8) and the local voters' pamphlet is required by RCW
81.104.140(9) and chapter 29.81A RCW.  Fundamental to statutory
construction is that we construe statutes which relate to the same subject
matter in pari materia, or in other words, as if they were one statute.
See Hallauer v. Spectrum Props., Inc., 143 Wn.2d 126, 146-47, 18 P.3d 540
(2001).  Reading RCW 81.104.140(8)-(9) together with RCW 29.81A.040(3), it
is clear that a high-capacity transit authority does not violate either
statute when it mailed the brochure in addition to the voters pamphlet.
Rather, it complied with these statutes.
7 Though a corollary to the last antecedent rule provides "the presence of
a comma before the qualifying phrase is evidence the qualifier is intended
to apply to all antecedents instead of only the immediately preceding one,"
In re Sehome Park Care Ctr., Inc., 127 Wn.2d 774, 781-82, 903 P.2d 443
(1995), the multiple antecedents relevant to the qualifier in the ballot
title are (1) the sales tax and (2) the motor vehicle excise tax.
8 If this merely means Sound Transit "unartfully drafted" Resolution 75,
majority at 13 n.11, it is contrary to precedent to give Sound Transit the
benefit of the doubt as the majority does.  See Hoppe, 82 Wn.2d at 552 (we
construe taxing statutes against the government).

 

 
 
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Supreme Court of the State of Washington

                            Opinion Information Sheet

Docket Number:       73413-5
Title of Case:       Sane Transit et al V Sound Transit
File Date:           03/04/2004
Oral Argument Date:  06/10/2003


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court of King County
Docket No:      02-2-15207-4
Judgment or order under review
Date filed:     11/08/2002
Judge signing:  Hon. John Erlick


                                    JUSTICES
                                    --------
Authored by Gerry L Alexander
Concurring: Faith Ireland
            Barbara A. Madsen
            Bobbe J Bridge
            Susan Owens
            Mary Fairhurst
Dissenting: Charles W. Johnson
            Richard B. Sanders
            Tom Chambers


                                COUNSEL OF RECORD
                                -----------------
Counsel for Appellant(s)
            Bradley H. Bagshaw
            Helsell Fetterman LLP
            1001 4th Ave Ste 4200
            Seattle, WA  98154

            Connie K. Haslam
            Helsell Fetterman LLP
            1001 4th Ave Plaza Ste 4200
            Seattle, WA  98154

            David Florian Jurca
            Helsell Fetterman LLP
            1001 4th Ave Plaza Ste 4200
            Seattle, WA  98154

Counsel for Respondent(s)
            Desmond Leoron Brown
            Sound Transit Union Station
            401 S Jackson St
            Seattle, WA  98104-2826

            Paul J. Lawrence
            Attorney at Law
            925 4th Ave Ste 2900
            Seattle, WA  98104-1158

Amicus Curiae on behalf of King County
            Thomas William Kuffel
            Attorney at Law
            E550 King County Courthouse
            516 3rd Ave
            Seattle, WA  98104-2385

            Noel Reynolds Treat
            King  Co Courthouse
            516 3rd Ave Rm E550
            Seattle, WA  98104-2385

Amicus Curiae on behalf of Association Of Washington Cities
            Sheila Marie Gall
            Association of Washington Cities
            1076 Franklin St SE
            Olympia, WA  98501-1346

CHAMBERS, J. (dissenting)  --  The voters approved a 21-mile light rail
line, not a 14-mile line.  If the voters approved a three bridge project,
would we hold that two bridges for the same price was within the scope of
the voters' approval?  I think not.  I dissent.
  I pause to lament a disturbing trend of our jurisprudence.  The people
have reserved unto themselves the power to legislate directly through the
initiative, proposition, referendum, and resolution processes.  E.g.,
Const. art. II, sec. 1.  The power of the people to legislate directly
should be jealously guarded and protected by the judicial branch.  However,
I fear this court is failing its constitutional duty to protect the
legislative role of the people by permitting inaccuracies, false
representations, and clever manipulation of these processes.  This court
has failed its essential constitutional duty to protect the integrity of
the exercise of the people's legislative power.
  For example, this court has recently held that more than one subject may
be included in an initiative so long as only one subject is mandatory.  See
Pierce County v. State, 150 Wn.2d 422, 78 P.3d 640 (2003).  Thus the
drafters of initiatives are invited to include promises and representations
within an initiative regardless of whether or not the operative language
fulfills those promises and representations.
Promotional materials may also mislead.  By statute, proponents may submit
language to be included in the voters' pamphlet that summarizes and
explains proposed legislation.  RCW 29.81.240.  Voters rely upon the
voters' pamphlet.  But our jurisprudence prevents us from reviewing the
promotional materials if the legislation is unambiguous.  See Parents
Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 149 Wn.2d 660, 683, 72
P.3d 151 (2003).  The voters' pamphlet explanation may say something
completely different from the unambiguous language in the proposed
legislation.  And this court has explicitly upheld the constitutional right
of initiative sponsors and opponents to commit outright lies while
campaigning.  State ex rel. Pub. Disclosure Comm'n v. 119 Vote No! Comm.,
135 Wn.2d 618, 626, 957 P.2d 691 (1998).
Courts have struck down Washington's law forbidding paid signature
gatherers.  Limit v. Maleng, 874 F. Supp. 1138 (W.D. Wash. 1994).  It is
not uncommon for signature gathers to be paid up to $2.00 per signature.
See Andrew DeMillo, Your Name's Worth $1-$2 to Signature Gatherers, Seattle
Times, June 27, 2000, at A1.  Thus, well financed special interest groups
may draft legislation, buy the signatures, and then make misleading
representations in the voters pamphlet and other promotional materials,
without fear of serious accountability.
I have the deepest respect and appreciation for this court's efforts to
protect the vital right of freedom of expression under the First Amendment
and article I, section 5 of our state constitution. However, I believe we
have arrived at this constitutionally unhealthy jurisprudence primarily
because this court has consistently analyzed the direct legislative
authority reserved by the people unto the people the same as the
legislative power given by the people to the representative branch of
government.
The brilliance of our constitution may be found in its checks and balances.
The initiative, referendum, proposition, and resolution processes are
fundamentally
different from the process engaged in by the legislative branch of
government.  Constitutionally, one size does not fit all.  Each process
must be analyzed differently in terms of available checks and balances.  As
each process is different, the judicial branch may play a different role in
each.
The right of the people to legislate directly, like the right of trial by
jury, should remain inviolate.
As I read the majority, today we take another step away from our
constitutional duty to protect and maintain the integrity of the people's
constitutional right to legislate directly.  Proponents of resolutions (and
presumably other measures sent to the electorate) may incorporate other
resolutions and documents by reference that give proponents almost
unfettered discretion to whatever they want regardless of what the
resolution submitted to the people promises to the people.
In the future this court, as intended by the checks and balances of our
constitution, should fulfill its underlying constitutional role and
guarantee honest, informed, and free elections.  This court should protect
the integrity of the people's legislative authority.  Although resolutions
may reference and coordinate with other laws, I would not permit
resolutions submitted to the people to incorporate other resolutions by
reference.  Each act submitted to the people should stand on its own merit.
Further, I believe that, at the very least, legislation submitted to the
people must substantially comply with the representations made to the
people in the voters pamphlet.  I would hold that a 14-mile light rail plan
substantially and

materially deviates from the legislation approved by the voters.  This 14-
mile light rail system, in my view, must be approved by the people.
Accordingly, I dissent.