JSJ, 2012 Vol. II -- Washington

Recent Taxing District Opinions

 

 

[Note:  Susan Owens is running for reelection to the state supreme court again in 2012]. 

 

During Susan Owens' 2006 reelection campaign, hundreds of thousands of dollars of support and attack ads were purchased on her behalf by a PAC funded by the biggest tax advocates in Washington State (the WEA and SEIU).  The ways in which she’s acted since then on that bench should bring her more of the same next election cycle. 

 

Here are four opinions that demonstrate Owens’ disrespect for our jurisprudence, an independent judiciary, and peoples’ rights:

 

I)  Sane Transit v. Sound Transit, 151 Wn.2d 60, 85 P.3d 346 (2004);

 

II)  Sheehan v. Central Puget Sound Regional Transit Authority, 155 Wn.2d 790, 123 P.3d 88 (2005);

 

III)  Larson v. Seattle Popular Monorail Authority, 156 Wn.2d 752, 131 P.3d 892 (2006); and

 

IV)  Pierce County v. State, 159 Wn.2d 16, 148 P.3d 1002 (2006).

 

Those opinions are here: http://www.mrsc.org/wa/courts/index_dtSearch.html

 

Let’s discuss those four opinions.  There is no better way to gauge a judge than by looking at how she behaves in situations with considerable importance to the public.

 

I.

 

Owens signed off on the majority opinion that came out of the _Sane Transit v. Sound Transit_ litigation.  Here’s a posting from somebody (probably a Sound Transit lawyer) about how that majority opinion provided extra taxing rights to Sound Transit:

 

***********************

 Posted by Soul not sold to Road Warriors at 9/18/09 12:10 p.m. in reply to: #1959407

Last edited at 9/18/09 12:12 p.m.

 . . .

 

We know, we know: if you reveal your role, your "stellar" reputation for credibility might be called into question. Heh heh. I just made myself laugh.

  

Millionaire developer / oil company suit Mark Baerwaldt is the guy who financed the Sane Transit case, and lost a bunch of cash on that gamble - not to mention a ruling which gave ST more authority than they probably even knew they had (oh, the irony!)


***********************

 

“Irony” does not describe what Owens and her colleagues did for Sound Transit there. 

 

Here are excerpts from five stories published in the Seattle Times relating to what the courts did for Sound Transit via that opinion:

 

- January 16, 2003:  The original transit package called for a 10-year series of projects that included a light-rail line from the University District to just south of the airport — for only $1.7 billion. But last fall, a King County Superior Court judge ruled that despite higher costs, Sound Transit has the power to build light rail in smaller segments and charge taxes for as long as needed to pay for its projects.

http://www.community.seattletimes.nwsource.com/archive/?date=20030116&slug=lightrail16m .

Obviously a superior court judge should not be expanding the taxing authority of a local government.  That is an example of courts making new law, not applying the law to the facts.  It is an egregious abuse of power for a judge to expand taxing powers beyond what the state statutes or the local government ordinances allow.

 

- July 29, 2003:  Sound Transit won a court case last year giving the agency power to continue collecting taxes at current rates indefinitely to complete its projects. However, the state Supreme Court is considering an appeal that would remove that taxing power and force a revote on light rail.

http://www.community.seattletimes.nwsource.com/archive/?date=20030729&slug=sound29m .

Taxing districts should not be winning lawsuits that give them new powers to collect taxes at specific rates indefinitely.  Such rulings by courts violate the separation of powers of our form of government – they infringe on the exclusive province of the legislative branch.

 

- June, 2007:  But if the transit lines get slammed by construction cost overruns or by high operating expenses, state court rulings have given Sound Transit permission to keep collecting taxes at the full rate — for as long as it takes — to finish whatever projects the voters approved.

http://www.seattletimes.nwsource.com/html/localnews/2003733560_transpodebt04m.html .

This refers to an opinion Owens signed off on.  Justices act far beyond the legitimate scope of their powers when they sanction indefinite tax revenue spending when that spending exceeds what state and local laws allow.  Removing a taxpayer-protection provision (such as a tax revenue spending limit) is an abusive act by a court, and it shows utter contempt for how our three-branch system of government must operate, the rights of people and families, and all of Anglo-American jurisprudence.  It is an extreme form of judicial activism (aka “legislating from the bench”).    

 

- October, 2007:  A dollar figure appeared in the 1996 transit measure, but state courts ruled it wasn't binding.  Judges also affirmed Sound Transit's power to either shorten the lines or collect the tax indefinitely to build and operate the projects and pay off bonds.

http://www.seattletimes.nwsource.com/html/localnews/2003944318_elexprop1soundtransit12m.html .

What courts and judges are supposed to do is enforce limits on taxing, not hand out opinions saying “indefinite” taxes are acceptable when that’s not what the laws allow.  Owens doesn’t care though.

 

- October, 2007:  If the future turns bleak, state courts have given Sound Transit power to keep its taxes in place, for as long as needed to build and operate the lines, once voters give the green light.

http://www.seattletimes.nwsource.com/html/localnews/2003918009_elexprop1adwatch02m.html .

In October, 2007 voters had not authorized Sound Transit “to keep its taxes in place, for as long as needed to build and operate the lines.”  1996’s Sound Move did not allow that.  It’s surprising the Seattle Times reported on this – usually it covers up Sound Transit’s failures to act properly (and the judiciary’s abuses of its power).

 

State courts act in excess of their constitutional powers when they give additional taxing rights to governments.  The three-branch system exists so each operates independently, and granting extra taxing power to a taxing district should be the exclusive province of the state legislature.  That’s not how it works in this neck of the woods though.  Owens and her colleagues hand out extra taxing power to local governments like it’s candy.

 

II.

 

Susan Owens authored the majority opinion in Sheehan v. Central Puget Sound Regional Transit Authority, 155 Wn.2d 790 (2005).  That opinion is a pack of lies.  Let’s drill down into that opinion, and examine the techniques Owens and her colleagues use to abuse their power. 

 

A.  The Actual Issue Brought to the Court is Simple

 

The legal challenge raised by the taxpayers in the _Sheehan_ litigation is that Sound Transit does not have the right kind of statutory authority to impose the kind of car tab tax it began imposing.

 

Here is what Sound Transit’s authorizing statute says:

Cities that operate transit systems, county transportation authorities, metropolitan municipal corporations, public transportation benefit areas, and regional transit authorities may submit an authorizing proposition to the voters, and if approved, may levy and collect an excise tax, at a rate approved by the voters, but not exceeding eighty one-hundredths of one percent on the value, under chapter 82.44 RCW, of every motor vehicle owned by a resident of the taxing district, solely for the purpose of providing high capacity transportation service.  In any county imposing a motor vehicle excise tax surcharge pursuant to RCW 81.100.060, the maximum tax rate under this section shall be reduced to a rate equal to eighty one-hundredths of one percent on the value less the equivalent motor vehicle excise tax rate of the surcharge imposed pursuant to RCW 81.100.060.

(Former) RCW 81.104.160(1) (Laws 1992 ch. 194 sec. 13; 1992 ch. 101 sec. 27; 1991 ch. 318 sec. 12; 1990 ch. 43 sec. 42).

 

The kind of tax that statute authorizes is an EXCISE TAX.  Moreover, that grant of taxing authority was limited.  The excise tax must be voter approved, and it may not exceed .8% of a vehicle’s value.

 

The taxpayers argued that tax grant statute did not authorize the kind of annual property-value-based vehicle licensing tax that Sound Transit implemented in April, 1997.

 

B.  Owens’ Opinion Ignores All the Taxpayers’ Legal Authorities and Arguments

 

Here is a link to the Taxpayers’ briefing:

http://briefingtext.webs.com/ 

 

The thrust of the argument was premised on the fundamental legal principle that no local government may impose a tax unless it is expressly authorized by a statute.  Moreover, the tax expressly authorized by the statute at issue is an EXCISE TAX, and that’s not the kind of tax Sound Transit implemented.

 

Numerous prior opinions describe the characteristics an EXCISE TAX must exhibit.  For example, the amount of that kind of tax must be calculated by referring to the magnitude of some taxing event whose size the taxpayer can control:

The distinction between a property tax and an excise tax is set forth in detail in _Black v. State_, supra.  As we said there, if a tax is imposed directly by the legislature without assessment, and its sum is measured by the amount of business done or the extent to which the conferred privileges have been enjoyed or exercised by the taxpayer, irrespective of the nature or value of the taxpayer's assets, it is regarded as an excise.

_Clifford v. State_, 78 Wn.2d 4, 8 (1970).

 

An unbroken line of cases going back decades illustrates exactly what kind of tax Sound Transit was authorized to implement under that statute.  Here are seven opinions that utilize the proper analytic framework to ascertain whether a tax meets the legal definition of an EXCISE TAX:

 

-- The state’s sales tax is triggered by purchases.  The tax amount is a function of the purchase price, and the taxpayer can adjust the tax amount by choosing different purchases.  _Morrow v. Henneford_, 182 Wash 625 (1935).

 

-- The state’s leasehold sales tax is triggered when the taxpayer transfers a leasehold.  The amount of the tax is function of the price the taxpayer chooses to accept in that voluntary transaction.   _Black v. State_, 67 Wn.2d 97 (1965).

 

-- The state’s Business and Occupations tax is triggered on receipt of business revenue.  Its amount varies depending on how the taxpayer has structured the revenue stream of the business.  _Clifford v. State_, 78 Wn.2d 4 (1970).

 

-- The state’s commercial food fish tax is triggered on the transfer of fish.  The tax amount depends on the price the purchaser agreed to pay for the fish.  High Tide Seafoods v. State, 106 Wn.2d 695 (1986).

 

-- The state’s wine distribution sales tax is triggered when a wine distributor sells wine to wholesalers.  The tax is measured as a function of voluntary sales contract prices.  _Cosro, Inc. v. Liquor Control Bd._, 107 Wn.2d 754 (1987).

 

-- The county solid waste haulage tax is triggered upon the transfer of trash from the taxpayer to a waste hauler.  The amount of the tax is a function of the contract price.  _Whatcom County v. Taxpayers_, 66 Wn. App. 284 (1992).

 

-- The state’s tax on the use and occupancy of a leasehold between a public port and a private lessee is triggered when the public port fails to collect that tax from its private lessee (in the event the tax is not paid directly by the lessee).  The tax amount is determined by the agreed-upon lease price.  _Wash. Pub. Ports Assn v. Dep’t of Revenue_, 148 Wn.2d 637 (2003).

 

In each of those those opinions the relevant inquiries relate to how certain features of the tax must be present for it to qualify as an EXCISE TAX.  The amounts of each of those seven valid excise taxes are measured by the size or amount of some voluntary undertaking of the taxpayer’s choosing. One must look at what kind of event triggers liability for the tax, and how the amount of the tax is measured.

 

The two main case law precedents the taxpayers in the _Sheehan_ litigation relied upon demonstrate what the justices should have done to treat the claims fairly:

 

1) The legitimacy of the local tax imposed pursuant to the EXCISE TAX authorizing statute RCW 35.21.768 was analyzed in _Arborwood Idaho, L.L.C. v. City of Kennewick_, 151 Wn.2d 359 (2004).  The type of tax that local government had implemented was determined to be improper by the court.  That statute delegated authority to impose an EXCISE TAX only.  The tax the local government began imposing though did not have the correct characteristics; it did not meet the definition of an EXCISE TAX.  The improper characteristics of that tax included how it was charged to the property owner on a regular periodic basis.  Other flaws with that tax are that the amount of that tax was unrelated to any use the owner made of the property, or the amount of any service provided for the benefit of the property.  Moreover, failure to pay this tax would result in the owner losing the right to use the property.

Here is the text of that statute:

The legislative authority of any city or town is authorized to adopt ordinances for the levy and collection of excise taxes and/or for the imposition of an additional tax for the act or privilege of engaging in the ambulance business. Such business and occupation tax shall be imposed in such amounts as fixed and determined by the legislative authority.

The excise taxes other than the business and occupation tax authorized by this section shall be levied and collected from all persons, businesses, and industries who are served and billed for said ambulance service owned and operated or contracted for by the city or town in such amounts as shall be fixed and determined by the legislative authority of the city or town.

All taxes authorized pursuant to this section shall be construed to be taxes other than a retail sales tax defined in chapter 82.08 RCW and a use tax defined in chapter 82.12 RCW, and the city or town shall appropriate and use the proceeds derived from all taxes authorized by this section only for the operation, maintenance and capital needs of its municipally owned, operated, leased or contracted for ambulance service.

RCW 35.21.768 (Laws 1975 1st ex.s. ch 24 sec 2).

 

That tax grant statute is identical in all material ways to the excise tax authorizing statute Sound Transit points at as supposed justification for its annual property-value-based car tab tax.  The problem for Sound Transit is that its car tab tax has the same characteristics as the periodic tax struck down as unlawful in _Arborwood Idaho, L.L.C. v. City of Kennewick_.  In particular, the improper characteristics of Sound Transits car tab tax (that is, the reasons it does not meet the definition of an excise tax), is that it is charged to the property owner on a regular periodic basis, the amount of that tax is unrelated to any use the owner made of the property (or the amount of any service provided for the benefit of the property), and failure to pay Sound Transit’s tax would result in the owner losing the right to make normal and reasonable use of the property.

  

2) Here’s another statute and opinion interpreting it cited by the taxpayers that Owens ignored completely in her opinion because she wanted to act dishonestly.  The legitimacy of the local tax imposed pursuant to the excise tax authorizing statute RCW 36.58.140 was analyzed in _Whatcom County v. Taxpayers_, 66 Wn. App. 284 (1992).

 

Here is the text of that statute:

A solid waste disposal district may levy and collect an excise tax on the privilege of living in or operating a business in a solid waste disposal taxing district sufficient to fund its solid waste disposal activities: PROVIDED, That any property which is producing commercial garbage shall be exempt if the owner is providing regular collection and disposal. The excise tax shall be billed and collected at times and in the manner fixed and determined by the solid waste disposal district. Penalties for failure to pay the tax on time may be provided for. A solid waste disposal district shall have a lien for delinquent taxes and penalties, plus an interest rate equal to the interest rate for delinquent property taxes. “The lien shall be attached to each parcel of property in the district that is occupied by the person so taxed and shall be superior to all other liens and encumbrances except liens for property taxes.

The solid waste disposal district shall periodically certify the delinquencies to the county treasurer at which time the lien shall be attached. The lien shall be foreclosed in the same manner as the foreclosure of real property taxes.

RCW 36.58.140 (Laws 1982 ch 175 sec 5).

 

That excise tax authority delegating statute is identical in all material ways to the tax grant statute Sound Transit claims authorizes its car tab tax.

 

The type of local tax the local taxing district implemented under RCW 36.58.140 was determined to be a legitimate excise tax by the court.  That is because the tax the local government began imposing was charged to the property when a voluntary act of the property owner triggered the tax.  In this case, the owner only was required to pay the tax when the property owner used a service the taxing district provided (solid waste pickup service).  Moreover, the amount of the tax was directly related to how much of the service the property owner used (“10 percent of the charges for solid waste collection service”).  Failure to pay this tax would not have resulted in the owner losing the right to use the property – that means it was voluntary.  The owner could decide to pay less of that tax (by obtaining less frequent solid waste pick ups), and the owner could choose to avoid that tax entirely (by hauling away her own trash).  Those features of how that local tax was triggered and measured meant that particular type of tax was a lawful excise tax. 

 

In her opinion, Owens ignored all of those legal authorities and arguments the taxpayers raised.  She in fact pretended all the prior case law bearing on what characteristics an EXCISE TAX must possess did not exist, and she failed to describe in her opinion any of the legal arguments raised in the briefing.

 

C.  Her Opinion is a Pack of Lies – It Repeatedly Misrepresents What the Statute Says

 

Susan Owens has a real talent for acting dishonestly.  Not only did she ignore the arguments and authorities the taxpayers' raised, she invented frivolous arguments, and attributed those to the taxpayers because she wanted them to lose.  She’s biased, and acts on those biases in a way that perverts justice.

 

One of Owens’ techniques to abuse her power is she falsely represents that the statute at issue says a variety of acts and things can be taxed.  A fundamental legal principle is that “municipalities must have express authority, either constitutional or legislative, to levy taxes.”  That maxim is reiterated in the _Arborwood Idaho, LLC_ opinion (and many others).  “Expressly authorized” means the delegation by the state of power to tax something must be set out in a statute in so many words.

 

The words the state legislature actually used in the tax grant statute Sound Transit relies on ((former) RCW 81.104.160(1)) only expressly authorize implementing “an excise tax” (one that is capped at a specified percentage of an owner’s vehicle’s value).  What Owens does in her opinion though is indicate the statute expressly authorizes a broad range of acts and subjects which in fact it does not:

 

-- The Lie No. 2 excerpt falsely indicates “an excise tax on motor vehicles” is expressly authorized. 

 

-- The Lie No. 3 excerpt falsely specifies “vehicle registration [is] the event triggering taxation”. 

 

-- The Lie No. 4 excerpt falsely indicates a tax on “relicensing a vehicle for use on the public roadways” is expressly authorized. 

 

-- The Lie No. 5 excerpt falsely indicates the statute expressly authorizes taxing “the privilege of driving”.

 

-- The Lie No. 6 excerpt falsely indicates the statute expressly authorizes imposing “an MVET”.

 

-- The Lie No. 8 excerpt falsely indicates the statute expressly authorizes imposing a tax on “the privilege of relicensing the vehicle annually”. 

 

-- The Lie No. 9 excerpt falsely represents that the statute authorizes a “MVET on the privilege of relicensing a vehicle for use on the public roadways”. 

 

-- The Lie No. 14 excerpt falsely represents that the statute at issue says “the taxable activity [is] driving on public roadways”. 

 

What Owens does is pretend a vast array of words are in (former) RCW 81.104.160(1) and then she puts that fictional statutory language she invents into her opinion.  That’s corrupt judicial behavior.  Everybody can tell (former) RCW 81.104.160(1) doesn’t expressly authorize taxing any of those things by reading the statute – the legislature did not put any of those sets of words in it.   

 

D.  This Opinion is a Pack of Lies – It Repeatedly Misrepresents What the Taxpayers Argued

 

In addition to the above misrepresentations regarding what the statute says, Owens invents lame legal arguments and attributes them to the taxpayers.

 

Lie No. 1 in _Sheehan_ :

[C]ontrary to the myriad arguments offered by Appellants, the taxes imposed by the Authorities are not illegal . . ..

 

“Myriad arguments” were NOT raised by the taxpayers.  The actual arguments center on a single claim:  that two taxes were not authorized by two particular statutes.   The taxpayers argued that improper, excessive taxes were implemented under the two statutes.  That argument – the real one – is ignored completely in the opinion.

 

Part of Owens’ m.o. is she ignores the real claims and legal authorities raised by the parties she wants to shaft.  The claim she ignores in this opinion is that the wrong kind of tax was implemented.  One of the main legal authorities her opinion ignores is the _Arborwood Idaho, L.L.C._ opinion.  The reason that 2004 opinion is so instructive is that in it the court concluded – correctly – that the statute at issue in it did not authorize the kind of tax the local government started imposing.  

 

THAT is the type of analysis the taxpayers sought.  By ignoring their claims and ignoring the controlling line of cases relating to the rules of statutory construction, Owens and her colleagues provided an unjustified win worth billions of dollars to the rich special interests that have her in their pocket.

 

That _Arborwood Idaho, L.L.C._ opinion was cited numerous times by the taxpayers in _Sheehan_ (in the appellate brief, the reply brief, and in the responses to the amicus briefing).  You can run a search and see those instances yourself, here:

http://briefingtext.webs.com/  

 

Owens’ _Sheehan_ opinion speaks of “myriad arguments”, yet she failed to identify the single argument that was the reason the litigation was commenced:  based on an unbroken like of cases Sound Transit implemented an excessive tax, one that in no way meets the definition of an EXCISE TAX, which is the only kind of tax the statute at issue authorizes.

 

Lie No. 2 in _Sheehan_ :

 

There is no dispute as to the underlying facts of this case.  . . . RCW 81.104.140 authorizes a regional transit authority, such as Sound Transit, to collect revenue from several funding sources, including an excise tax on motor vehicles.

 

Here Owens falsely asserts RCW 81.104.140 “authorizes” a tax.  It does not.  All it does is refer to several statutes that do authorize different kinds of taxes.  Here’s a link to that particular statute:

http://apps.leg.wa.gov/rcw/default.aspx?cite=81.104.140


Lie No. 3 in _Sheehan_ :

 

Contrary to Appellants' assertion, there is no basis to conclude that 'register' or 'license' somehow operate as indispensable words without which a local authority is precluded from using vehicle registration as the event triggering taxation on the privilege of driving.  Such an exceedingly rigid view of the constitutional analysis would be antithetical to the Legislature's ability to delegate its authority to tax.

 

The taxpayers NEVER asserted “that 'register' or 'license' somehow operate as indispensable words without which a local authority is precluded from using vehicle registration as the event triggering taxation on the privilege of driving.”  She simply made that up.  Owens invented that ludicrous “assertion” to cover up the fact that the statute authorizes only a completely different type of tax.

 

Search the taxpayers’ briefing for the term “indispensable” (or any other term you might want to look for, such as “register” or “license”):

http://briefingtext.webs.com/ 

 

You won’t find anything like that purported “assertion” from the taxpayers in their briefing.  This is Owens’ m.o. – falsely ascribing lame arguments to the litigants that she wants to lose DESPITE the law.

 

The fact of the matter is that Sound Transit’s position is the untenable one.  Its position is that the legislature used two completely different sets of words in two separate tax grant sections of the same legislative enactment (43 Laws 1990) to refer to a vehicle-value-based car tab tax.  That position is directly contrary to a fundamental principle of statutory construction:

“When the legislature uses different words within the same statute, we recognize that a different meaning is intended.”  _Haley v. Highland_, 142 Wn.2d 135 (2000).

 

When the legislature expressly delegated local car tab tax taxing authority to counties in 43 Laws 1990 it specified the tax was to be a motor vehicle licensing “surcharge” AND it specified that the tax would be triggered when the vehicle was “registered”.   In contrast, the tax grant statute Sound Transit relies on uses completely different words.  It specifies an “excise tax” may be imposed, and it does not say either imposing the tax or collecting the tax was to be related to the act of registering for car tabs.  Even the separate statute (RCW 81.104.190) authorizing RTA’s to contract with other entities for administration and collection of the tax is framed in the permissive (Sound Transit was not even obligated to contract with DOL for any aspect of the tax authorized under its “excise tax” grant statute).

 

As noted above, that passage misrepresents what the tax grant statute ((former) RCW 81.104.160(1)) says.  It does not expressly authorize “taxation on the privilege of driving”.  Owens made that up for her opinion because if it did say that Sound Transit would have a decent argument that is was taxing an act expressly identified by the state legislature. 

 

Lie No. 4 in _Sheehan_ :

 

Appellants also argue that the taxes, which are calculated with reference to the value of a resident's vehicle, are not adequately based on the extent to which a resident enjoys the privilege of relicensing a vehicle for use on the public roadways in the relevant municipality.

 

Here again she makes up lame arguments and attributes them to the taxpayers.  She enjoys inventing and then shooting down specious straw-man arguments when the rich beneficiaries of taxing districts’ financing practices want her to act that way.

 

The taxpayers did not assert any argument like “[the taxes] are not adequately based on the extent to which a resident enjoys the privilege of relicensing a vehicle for use on the public roadways in the relevant municipality.”  Search the briefing for the term “enjoys the privilege of relicensing” (or any other term that might have prompted her to characterize the taxpayers’ argument that way):

http://briefingtext.webs.com/ 

 

You won’t find anything like that supposed argument in the briefing.  The fact of the matter is the taxpayers argued it was improper for Sound Transit to tax “the privilege of relicensing a vehicle for use on the public roadways”. 

 

Owens lies about that though, and make up a ridiculous “argument” in which the taxpayers supposedly conceded taxing the act of applying for car tabs was authorized by the statute.  That is a despicable and fundamental misrepresentation of all aspects of the actual claims.

 

Another point regarding that sentence from _Sheehan_:  contrary to what it suggests, the tax grant statute ((former) RCW 81.104.160(1)) does not expressly authorize taxing “the privilege of relicensing a vehicle”.  Neither the term “privilege” nor the term “relicensing” is used.  If those words had been in that tax grant Sound Transit would have a decent argument that it was taxing an act expressly identified by the state legislature as what it could tax. 


Lie No. 5 in _Sheehan_ :

 

This is footnote 3 of the opinion:

Appellants suggest that a valid excise tax on the privilege of driving would require taxation based on mileage as determined by periodic odometer readings.

 

The taxpayers never argued or suggested anything like that.  Run a search of the briefing for the term “odometer” or “the privilege of driving” or anything else you think might justify what footnote 3 says.  Owens just made up a straw-man argument so she could shoot it down.  

 

The taxpayers never used the term “the privilege of driving”.  They never argued a valid excise tax would require reading odometers.  They also never argued (former) RCW 81.104.160(1) required implementation of a tax based on the number of miles the vehicle was driven.   The only reference the taxpayers made to odometer readings was as an example of how a valid EXCISE TAX under that tax grant statute could have been designed.

 

This is the Susan Owens approach to judging:  make up garbage claims and attribute them in your opinions to the parties your political base wants to lose important cases.

 

Another point regarding that footnote 3 from _Sheehan_ :  the tax grant statute at issue ((former) RCW 81.104.160(1)) does not expressly authorize taxing “the privilege of driving”.  Neither the term “privilege” nor the term “driving” is used in the statute upon which Sound Transit relies for its car tab tax.  The justices suggest that statute uses those words because if it did then Sound Transit would have a decent argument that it was taxing something expressly identified by the state legislature as what it could tax. 

 

 Lie No. 6 in _Sheehan_ :

 

Appellants appear to conclude that Sound Transit may collect an MVET up to 0.3 percent annually but only until such taxation on a given vehicle reaches a sum total of 0.8 percent . . ..

 

Here again Owens invents a ridiculous argument and attributes it to the taxpayers.   The fact of the matter is that at all times in this litigation the taxpayers argued “an MVET” was NOT authorized by that tax grant statute. 

 

Indeed, the taxpayers never came anywhere close to claiming a car tab tax whose amount was a function of vehicle value was authorized by (former) RCW 81.104.160(1).  Run a search of the briefing for the term “MVET” or “motor vehicle excise tax” – searches such as those will show Owens and her colleagues simply made up lousy arguments and attributing those fictional claims to the parties they wanted to shaft:  

http://briefingtext.webs.com/ 

 

Given what the statute expressly authorizes, an EXCISE TAX based on the extent to which the vehicle was operated would have been proper, but that’s not what the taxing district implemented. 

 

It’s Judicial Corruption 101.  Your political base is on the wrong side of the law?  Simply lie about the claims in your opinion to cover it up.

 

Contrary to what Owens here suggests, the tax grant statute at issue ((former) RCW 81.104.160(1)) does not expressly authorize “an MVET”.  The acronym “MVET” is not used, and the term “motor vehicle excise tax” is used in that statute only in reference to a completely different local tax (one delegated to counties via the same 1990 statute). 

 

Why then did Owens suggest falsely that statute uses the acronym “MVET”?  She’s providing a cover-up.  If that is what the statute said then Sound Transit would have a decent argument that it was taxing something expressly identified by the state legislature as what it could tax. 

 

Lie No. 7 in _Sheehan_ :

 

[T]he express language of the authorizing legislation provides for 'an excise tax . . . of every motor vehicle,' former RCW 81.104.160(1) (Sound Transit) . . ..

 

That sentence completely misrepresents what the statute says. 

 

Owens there asserts the prepositional phrase “of every motor vehicle” refers to the subject of the tax grant (that is, what can be taxed).  She is wrong about that.  The only way that phrase can be read – when all the punctuation and words the legislature used are included – is as part of the tax amount limiting clause. 

 

Owens misleadingly omitted from that supposed citation the comma separating the tax grant language (“an excise tax”) from the bulk of the tax capping language that culminates with the prepositional phrase “of every motor vehicle”.  By taking the comma and the particular words out of the statute she did, and then replacing them with an ellipsis, she rewrites the statute in a way the state legislature did not intend. 

 

Here’s the actual language from the statute:

[R]egional transit authorities . . . may levy and collect an excise tax, at a rate approved by the voters, but not exceeding eighty one-hundredths of one percent on the value, under chapter 82.44 RCW, of every motor vehicle owned by a resident of the taxing district, solely for the purpose of providing high capacity transportation service.  In any county imposing a motor vehicle excise tax surcharge pursuant to RCW 81.100.060, the maximum tax rate under this section shall be reduced to a rate equal to eighty one-hundredths of one percent on the value less the equivalent motor vehicle excise tax rate of the surcharge imposed pursuant to RCW 81.100.060.

 

Here is the only way that statute can be read in a way that gives effect to everything the legislature put in it.  First, the kind of tax being authorized is specified (“an excise tax”).  The legislature then used a comma to separate from that tax grant language two separate limitations on the authority being delegated:  1)  a voter approval requrement, and 2) a rate limit (“at a rate approved by the voters, but not exceeding eighty one-hundredths of one percent on the value, under chapter 82.44 RCW, of every motor vehicle”). By disregarding both the comma and three-quarters of the words comprising the rate limit term Owens improperly rewrites that statute.  Her deceitful rewrite makes it look as if “of every motor vehicle” is part of a tax grant phrase.

 

Standing alone, the words she took out of that statute and replaced with an ellipsis are meaningless gibberish (“at a rate approved by the voters, but not exceeding eighty one-hundredths of one percent on the value, under chapter 82.44 RCW”).  Construing a statute in a way that leaves a long, incomprehensible string of words violates the rule that statutory language must be read as a whole and effect must be given to all the words the legislature uses. 

 

Moreover, we know from related statutory provisions that the legislature could not have intended to delegate to Sound Transit a vehicle-value-based car tab tax via (former) RCW 81.104.160(1).  We know that because it used entirely different words in the same legislative enactment to delegate to counties authority to impose a tax with those particular characteristics.  The words the legislature used in Laws 1990 ch. 43 section 17 to delegate local car tab tax taxing authority to counties now are codified as RCW 81.100.060:

A county . . . may, with voter approval, impose a local surcharge of not more than three-tenths of one percent . . . of the value on vehicles registered to a person residing within the county . . ..

 

In 1990, when the legislature expressly delegated that vehicle-value-based local car tab tax taxing authority to counties, it first identified the kind of tax (“a local surcharge”), then the taxing power delegated was limited (“of not more than three-tenths of one percent . . . of the value on vehicles”), and then the act triggering the tax was specified (“registered to a person residing within the county . . ..”).  THAT is how the legislature delegated express statutory authority for a local car tab tax based on vehicle value in 43 Laws 1990.  It used completely different words in the statute Sound Transit relies on, which means it must have intended to delegate a different type of tax.  _Haley v. Highland_, 142 Wn.2d 135 (2000).

 

E.  This Opinion Contains Numerous Examples of Faulty Analyses

 

Here is some more garbage-quality analysis from that paragraph containing the “Lie No. 7” sentence.  That paragraph concludes with this unintelligible sentence:

 

While the original MVET of 1937 explicitly used the term 'annual,' we cannot conclude by negative implication that the legislature, approximately 60 years later, necessarily intended the Authorities' MVET to operate as a onetime cap.

 

A “MVET” is a tax – how could a tax possibly “operate as a onetime cap”?

 

All she is doing there (again) is inventing a confusing, meritless legal argument and then attributing it to the parties to whom she wants to hand a huge loss. 

 

The taxpayers never argued the kind of local tax the statute actually authorizes should “operate as a onetime cap” (whatever that means).  They always argued (former) RCW 81.104.160(1) did NOT authorize a “MVET”.   Moreover, the taxpayers certainly never requested that the justices “conclude” anything “by negative implication”.  The briefing shows what Owens ascribes to them there is a claim she’s invented for her opinion:

 

http://briefingtext.webs.com/ 

 

Here’s the sentence following the one quoted immediately above:

 

[I]t seems clear that the legislature intended to adopt the long-held understanding of the meaning and operation of an MVET.   See former RCW 82.44.020(1).

 

Owens here says it “seems clear” to her the legislature meant to delegate authority via (former) RCW 81.104.160(1) for a tax with the same material characteristics as the tax the state previously had been imposing pursuant to (former) RCW 82.44.020(1).

 

Her “reasoning” there doesn’t stand up to the slightest scrutiny.  First, Sound Transit’s statute does not expressly authorize “an MVET”, so what “seems clear” to her is not supported by the express terms of the statute at issue (or any related statutes). Moreover, the words the legislature in fact used do not expressly authorize a car tab tax (or a surcharge, or a licensing fee) based on the amount of vehicle value.  Also, we know the legislature did not intend to delegate authority for a car tab tax based on the amount of vehicle value via (former) RCW 81.104.160(1) for a number of reasons, including the fact that the legislature delegated that exact kind of tax authority to counties in the same 1990 legislative enactment using entirely different words.  All of those reasons mean that the different words it did use in (former) RCW 81.104.160(1) MUST be construed as referring to a different kind of tax. 

 

Owens there also contends it “seems clear” the legislature intended to delegate authority to Sound Transit to impose a tax with the same characteristics as the car tab tax the state imposed years before pursuant to RCW 82.44.020(1).  That conclusion is not supported by what that earlier statute actually says: 

. . . an excise tax is imposed for the privilege of using in the state any motor vehicle . . ..  The annual amount of such excise tax shall be two and two-tenths percent of the value of such vehicle.

 

That 1937 state vehicle licensing tax statute expressly delineates a tax “for the privilege of using in the state any motor vehicle.”  That is the specified subject of that licensing tax.  In contrast, the legislature did not delegate authority to impose a tax “for the privilege of using in the state any motor vehicle” in the statute Sound Transit relies on.  Moreover, related statutes (including the contemporaneous MVET surcharge authority delegated to counties using different words AND the preemption statute relating to vehicle licensing) preclude Sound Transit from selecting the particular act of applying for a vehicle license as the triggering event of the tax (former) RCW 81.104.160(1) authorizes.

 

That state licensing tax statute also differs in other key ways from the tax grant statute Sound Transit relies on.  It expressly authorizes an annual tax, whereas Sound Transit’s tax grant statute does not.  Also, a second statute specifically authorized the imposition of that state vehicle registration tax as a condition of obtaining a vehicle license.  In contrast, no statutory authority provided that a tax implemented under (former) RCW 82.44.020(1) was to be imposed as a condition of vehicle licensure.

 

The next sentence in this opinion Owens authored is this one:

[T]he legislature provided for DOL's collection of the MVET.  RCW 81.104.190.

 

Here again she alludes to phantom statutory terms.  First, the statute Sound Transit relies on for its car tab tax does not expressly authorize a “MVET”.  (Former) RCW 81.104.160(1) is copied above; it does not use that acronym, or the words “motor vehicle excise tax” (except in reference to a completely different local tax).  Moreover, RCW 81.104.190 in fact does not provide for DOL’s collection of any tax.  The state agency that statute references instead is DOR:

Cities that operate transit systems, county transportation authorities, metropolitan municipal corporations, public transportation benefit areas, high capacity transportation corridor areas, and regional transit systems may contract with the state department of revenue or other appropriate entities for administration and collection of any tax authorized by RCW 81.104.150, 81.104.160, and 81.104.170.

 

The fact of the matter is that had Sound Transit implemented the right kind of tax pursuant to its tax grant statute it would not have been required to coordinate collection of it with ANY state agency – that’s what RCW 81.104.190 actually says.

 

Owens just makes things up to reach the result she wants.  That’s the antithesis of how a judicial officer is supposed to function.  No legitimate statutory authority for a local tax?  Owens feels perfectly free to legislate from the bench, and come up with the language in her opinions inventing the additional taxing authority governments want. 

 

Here are the next two significant sentences from her opinion:

 

Notably, RCW 46.16.0621(2) provides for payment annually.  All of this provides further indication that the legislature both considered and intended to authorize the annual imposition of the Authorities' MVET.

 

The issue before the court was whether the legislature intended to delegate authority for a vehicle-value-based car tab tax via a particular 1990 statute (chapter 43 Laws 1990 section 42).  The statute Owens reference there (RCW 46.16.0621) could not possibly bear in any way on that issue because that statute she brings up was not enacted until 2000.  Let me repeat that.  Owens says RCW 46.16.0621 – enacted during the special session of 2000 – is evidence of what kind of tax the legislature intended to authorize ten years earlier.  There’s no way any statute enacted in 2000 could bear on the issue of whether or not the particular type of tax Sound Transit began imposing in 1997 was authorized by a 1990 statute.

 

Lie No. 8 in _Sheehan_ :

 

Finally, if Appellants' contention that the Authorities are restricted to a onetime per-vehicle cap were correct, the taxes would no longer operate as a valid excise tax.  As discussed above, these motor vehicle taxes operate as valid excise taxes because they are assessed upon the privilege of relicensing a motor vehicle for use on the public roadways—a privilege that is taxed annually at registration.  If, as Appellants maintain, the legislature authorized taxes that are based purely on the value of a vehicle rather than the privilege of relicensing the vehicle annually, such taxes could only operate as what are known as ad valorem or property taxes.  The legislature has expressly and unequivocally forbidden such taxes on motor vehicles.  RCW 82.44.130 ('No motor vehicle shall be listed and assessed for ad valorem taxation so long as this chapter remains in effect').  Thus, adopting Appellants' position would require the conclusion that the legislature intended to authorize Sound Transit and the Monorail to enact taxes that are clearly illegal under a related statute.

 

Here again Owens lies about the claims by inventing a meritless argument and attributing it to the taxpayers.  At no time in the litigation did the taxpayers ever argue “the legislature authorized taxes that are based purely on the value of a vehicle”.  The taxpayers always maintained (former) RCW 81.104.160(1) does NOT authorize taxes based on vehicle value – that was the entire point of the lawsuit.

 

Run a search of the briefing, and try to find someplace in it where the taxpayers contend anything like “the legislature authorized taxes that are based purely on the value of a vehicle”:   

 

http://briefingtext.webs.com/ 

 

Another point regarding that paragraph:  contrary to what the reader is supposed to infer from it, the tax grant statute at issue ((former) RCW 81.104.160(1)) does NOT expressly authorize a tax on “the privilege of relicensing a motor vehicle”.  Neither those terms, nor anything like them, are not used in that statute.  That 1990 enactment does not even use the terms “privilege” or “privilege of relicensing”.  This is Owens inventing for her opinion terms she pretends the legislature used. 

 

That paragraph refers to related statutes.  All the related statutes show the legislature did NOT intend to delegate to regional transit authorities the power to impose a tax on “the privilege of relicensing a motor vehicle” via (former) RCW 81.104.160(1).  We know that because the legislature used entirely different words in the same legislative enactment to expressly delegate to counties authority to impose two different taxes that WERE to be triggered by the act of registering a vehicle to obtain car tabs:

 

-- The annual county value-based car tab tax authorizing grant (codified as RCW 81.100.060) first identifies the kind of tax (“a local surcharge”), then the taxing power delegated was limited (“of not more than three-tenths of one percent . . . of the value on vehicles”), and then the act triggering the tax was specified (“registered to a person residing within the county . . ..”).  THAT is how the legislature delegated express statutory authority for a local car tab tax based on vehicle value in 43 Laws 1990.

 

-- The county dollar-denominated car tab tax authorizing grant codified as (former) RCW 82.80.020 first identifies the kind of tax (a “fee”), then the taxing power delegated was limited (“not to exceed fifteen dollars per vehicle”), and then the act triggering the tax was specified (“for each vehicle that is subject to license fees under RCW 46.16.060”).  THAT is how the legislature delegated express statutory authority for a local car tab tax triggered when the vehicle owner registers the vehicle to obtain car tabs in 42 Laws 1990.

 

The legislature used entirely different sets of words in the tax grant statute Sound Transit relies on, so it MUST have intended to delegate authority for a different kind of tax.  Here again is that relevant, fundamental tenet of statutory construction:

 

“When the legislature uses different words within the same statute, we recognize that a different meaning is intended.”  _Haley v. Highland_, 142 Wn.2d 135 (2000).

 

Here’s another example of corrupt behavior in that paragraph.  It starts out this way:

 

Finally, if Appellants' contention that the Authorities are restricted to a onetime per-vehicle cap were correct, the taxes would no longer operate as a valid excise tax.

 

BS.  The tax limiting language in the statute Sound Transit relies on certainly could have operated as a onetime per-vehicle cap for a valid excise tax.  The statute limits the “excise tax” authority delegation using these words:

 

“at a rate approved by the voters, but not exceeding eighty one-hundredths of one percent on the value, under chapter 82.44 RCW, of every motor vehicle”.

 

One way Sound Transit could have implemented a valid EXCISE TAX limited as that clause requires would have been to have selected as the triggering event something like driving one mile.  The rate could have been one nickel per mile (for example).  Had Sound Transit implemented that kind of excise tax the tax limiting clause would have operated as a onetime cap.  You would drive your vehicle a certain number of miles, pay a nickel a mile, then when you’d paid an amount equal to .8% of the “82.44 RCW” value you wouldn’t pay any more of that excise tax.

 

This is Owens’ m.o. – when litigants argue the real law and she doesn’t like what that would do to her political base’s interests she just signs off on opinions containing complete garbage.

 

Lie No. 9 in _Sheehan_ :

 

This next one shows up in the “analysis” of the statutory preemption claim.  She first mischaracterizes the legal arguments and facts the taxpayers presented.  Then she asserts the tax grant statute expressly authorizes taxing something it in fact does not:

 

Appellants would have us hold that the Authorities' MVET could be valid only if the legislature had provided a preemption exception, which would require a specific reference to 'registration' or 'licensing' taxes in the enabling statutes.

 

Contrary to Appellants' interpretation of the vehicle licensing statutes, there is no preemption in this case.  The Authorities have not undertaken the issuance of vehicle licenses, as prohibited by RCW 46.08.010.  Instead, the Authorities have implemented a duly authorized MVET on the privilege of relicensing a vehicle for use on the public roadways.  This is contemplated, not prohibited, by the reference to the 'license fees and excise tax as may be required by law' in RCW 46.16.210(2).  The Authorities' vehicle taxes are 'required by law.'

 

The taxpayers never took the position that this “MVET could be valid only if the legislature had provided a preemption exception, which would require a specific reference to 'registration' or 'licensing' taxes in the enabling statutes”.  The fact of the matter is that at all times in the litigation the taxpayers argued that MVET was NOT authorized.

 

In addition, the argument actually raised based on the preemption statute bears no resemblance to how it is characterized there.  Run a search of the briefing for the term “preemption exception”, “registration taxes”, “licensing taxes”, or anything else you think the justices might have been referring to in that passage.  Searches such as those will show the justices again simply made up a straw-man argument and attributed it to the taxpayers:  

 

http://briefingtext.webs.com/ 

 

Another point regarding this excerpt -- it contains yet another false assertion about what kind of tax the statute expressly authorizes.  (Former) RCW 81.104.160(1)) does not expressly authorize a “MVET on the privilege of relicensing a vehicle for use on the public roadways”.  The acronym “MVET” is not used in the statue, nor is the term “motor vehicle excise tax”.  “Pivilege” is not in (former) RCW 81.104.160(1), nor is “relicensing a vehicle”.

 

Why does Owens pretend all those terms are in the statute at issue?  If those words were in the statute Sound Transit would have a decent argument that it was taxing something expressly identified by the state legislature as what it could tax.   She’s doing her best to cover up that government’s unlawful, abusive behavior.

 

Lies No.’s 10 and 11 in _Sheehan_ :

 

This passage contains two of them:

 

Additionally, the legislature made specific provision for the Authorities to employ DOL in collecting the vehicle taxes.  See RCW 81.104.190 . . ..  Appellants' suggestion that the legislature simultaneously authorized DOL to collect the Authorities' MVET and preempted those taxes under the vehicle licensing statute is once again adverse to our rules of statutory construction.  See Alderwood Water Dist., 62 Wn.2d at 321 (statutory interpretation should 'avoid unlikely, strained or absurd consequences').

 

There the justices falsely assert the taxpayers argued “that the legislature simultaneously authorized DOL to collect the Authorities' MVET and preempted those taxes under the vehicle licensing statute”.  The taxpayers never took the position that the legislature authorized DOL to collect Sound Transit’s MVET – the justices made that up.  At all times in the litigation the taxpayers argued that MVET was NOT authorized (due to how the statute expressly authorizes a different kind of tax AND because different words were used in the same statutory enactment to delegate authority to counties for a MVET). 

 

Run a search of the briefing for the term “DOL”, “department of licensing”, “MVET”, “motor vehicle excise tax”, or anything else you think the justices might have been referring to in that passage.  Searches such as those will show the justices again simply made up a straw-man argument and attributed it to the litigants challenging a practice in which the justices’ political base engages:  

 

http://briefingtext.webs.com/ 

 

Owens and her colleagues get off on inventing absurd legal arguments and shoving them into the mouths of the litigants they want to lose cases.  That keeps their political base happy with them.

 

The other falsehood the justices spread in that passage is when they assert RCW 81.104.190 “made specific provision for the Authorities to employ DOL”, and that it “authorized DOL to collect the Authorities' MVET.”  The relevant statute is RCW 81.104.190.  It does not mention DOL or require it to collect any tax.  The only state agency that statute specifically references is DOR, not DOL:

 

Cities that operate transit systems, county transportation authorities, metropolitan municipal corporations, public transportation benefit areas, high capacity transportation corridor areas, and regional transit systems may contract with the state department of revenue or other appropriate entities for administration and collection of any tax authorized by RCW 81.104.150, 81.104.160, and 81.104.170.

 

Had Sound Transit implemented the right kind of tax (an “excise tax” – that is what the statute expressly authorizes) it would not have been required to “employ” DOL (or any state agency) to do collection work for it.

 

Lie No. 12 in _Sheehan_ :

 

Appellants argue that the Authorities have implemented property taxes, not excise taxes, because the assessment is calculated as a percentage of vehicle value rather than the degree to which a resident uses the public roadways.

 

Here’s the briefing:

 

http://briefingtext.webs.com/ 

 

Here are the relevant sentences in the brief addressing why Sound Transit’s car tab tax amounts to a property tax under the relevant legal precedents:

 

The CPSRTA and SPMA taxes are imposed on property owners.  Contrary to the claims of the three governments in this lawsuit, neither tax serves any statutorily authorized licensing function.  Accordingly, the character of these taxes can not be distinguished from that of the _ad valorem_ county property tax discussed in _Hansen_, supra.  Liability for these taxes is not triggered or measured by justifying taxing events of the type that cause all validated excise taxes to come due.  Payments are required periodically, and relinquishing the availability of use of a vehicle is the only way to avoid them.  Such taxes best fit the definition of an unavoidable property tax, so they are property taxes.  _Covell v. City of Seattle_, supra; 127 Wn.2d at 890.  The periodic levies with characteristics such as these that Mukilteo imposed also were deemed to be property taxes.  _Harbour Village Apartments v. City of Mukilteo_, supra, at 607-8.  The property tax label fits the CPSRTA and SPMA taxes even better than it does the taxes in _Covell_and _Harbor Village Apartments_ because the taxes at issue here are measured as a percentage of assessed property value.

 

What the taxpayers in fact argued is that Sound Transit’s car tab tax is a property tax as it serves no statutorily authorized licensing function, and it is not triggered or measured by the kind of taxing event that causes all previously-validated excise taxes to come due.  Moreover, the Sound Transit tax is in all material respects identical to taxes deemed to be property taxes in two prior opinions (such as _Covell_and _Harbor Village Apartments_ ).  This Sound Transit tax is functionally identical to the property taxes at issue in those cases because payments are required on a regular periodic basis, unless the owner relinquishes the availability for use of his or her vehicle.  

 

Do the justices characterize the actual argument accurately or fairly in the opinion?  No way.  They didn’t want to address those, so they made up a lame argument and shoved it into the taxpayers’ mouths.  As can be seen from the briefing, the reasons Sound Transit’s car tab tax must be deemed a property tax is not a function merely of how that tax is measured (which is how that paragraph misrepresents the argument).

 

Another point regarding this paragraph:  the justices there repeat what they said in the “Lie No. 9” passage about what the statute supposedly expressly authorizes taxing.  The fact of the matter is that (former) RCW 81.104.160(1) does not expressly authorize a tax to be “levied on the privilege of relicensing a vehicle for use on the public roadways”.  None of the following words or groups of words are in that statute:  “privilege”, “privilege of relicensing a vehicle”, or “relicensing a vehicle”.

 

Under all prior authorities Sound Transit’s car tab tax is not what was authorized (an excise tax).  Instead, it must be characterized as a property tax.  That tax serves no statutorily authorized licensing function, and it is in all material respects comparable to the invalid property taxes struck down in _Covell_ and _Harbour Village Apartments v. City of Mukilteo_.  Moreover, it has even more characteristics of a property tax than do the two taxes struck down in those two opinions as it is imposed directly on the assessed value of property, as opposed to being measured by the magnitude of some taxing event whose size the taxpayer can control:

 

The distinction between a property tax and an excise tax is set forth in detail in _Black v. State_, supra.  As we said there, if a tax is imposed directly by the legislature without assessment, and its sum is measured by the amount of business done or the extent to which the conferred privileges have been enjoyed or exercised by the taxpayer, irrespective of the nature or value of the taxpayer's assets, it is regarded as an excise.

 

_Clifford v. State_, 78 Wn.2d 4, 8 (1970).

 

 

Lie No. 13 in _Sheehan_ :

 

While Appellants are correct that a taxation scheme with a closer nexus between the privilege and the taxation method is conceivable,3 they offer no persuasive argument or authority suggesting that the constitution requires such a precise fit.

 

The taxpayers never argued that.  You can see that for yourself by searching the briefing for the terms “nexus” and “taxation method” – neither of them was used:

 

http://briefingtext.webs.com/ 

 

This is another example of Owens doing her “thing” and lying about the claims raised in order to give big-money wins to an interest group.

 

Lie No. 14 in _Sheehan_ :

 

Once again, the mere fact that a closer nexus between the taxable activity (driving on public roadways) and the taxing event (vehicle registration) is conceivable does not require the recharacterization of such taxes as property taxes.  This is the conclusion inherent in _Hansen_, and we decline Appellants' invitation to disregard that precedent.

 

That’s another specious fictitious argument in Owens’ opinion attributed to the taxpayers.  The taxpayers never challenged Sound Transit’s car tab tax on the grounds that the “nexus” between the “taxable activity” and the “taxing event” wasn’t close enough.  You can see that by searching the briefing for the terms “nexus” and “taxable activity” – neither is used:

 

http://briefingtext.webs.com/ 

 

The main reason _Hansen_ in fact is inapposite is the state tax it distinguishes from a property tax was a licensing tax.  That is not the case with the statute at issue.  The legislature did not expressly authorize RTA’s to impose a licensing tax via the statute Sound Transit points at, and we know that based on the following:

 

-- that statute only authorizes an “excise tax”, and under the definition set out in 1965’s _Black v. State_ (and the unbroken line of cases following that opinion set out above) an "excise tax" can not be imposed on a regular periodic basis, can not be measured by property value alone, and must be measured by the size of some transaction the taxpayer chooses to enter or the amount of some service the taxpayer receives;

 

-- no statutory terms expressly authorize imposition of the (former) RCW 81.104.160(1) tax as a condition of vehicle license issuance by the state; and

 

-- the legislature used completely different terms to delegate MVET authority to counties in that same 1990 enactment (including expressly exempting that county MVET “surcharge” from application of the preemption statute), so it MUST have intended any tax implemented pursuant to (former) RCW 81.104.160(1) would not be a vehicle-value-based annual licensing tax.

 

For those reasons there is absolutely nothing about the _Hansen_ that provides any precedential authority justifying Sound Transit’s car tab tax.

 

Another point about this excerpt – contrary to what it asserts, (former) RCW 81.104.160(1) does not expressly authorize a tax where “the taxable activity [is] driving on public roadways”, nor does it expressly authorize a tax where “the taxing event [is] vehicle registration”.  Those terms are not used in that tax grant statue. 

 

 

III.

 

 

Susan Owens also signed off on the _Larson v. Seattle Popular Monorail Authority_ majority opinion in 2006.  The way that opinion deals with a “taxation-without-representation” issue is reprehensible, and the antithesis of proper behavior by judicial officers.

 

For starters, the “taxation-without-representation” issues addressed in the _Larson_ opinion never should have been considered by the justices.  Pursuant to the Rules of Appellate Procedure – rules that are supposed to guide the appellate courts of this state on issues including what claims they can address – the justices never should have considered that claim, let alone addressed it at length and then sanctioned the delegation to that appointive board of the limitless taxing powers it obtained.

 

The majority in that opinion goes on and on for pages addressing an entirely meritless Article XI sec. 12 taxation-without-representation claim.  Owens and her colleagues should not have addressed that claim for two reasons:  it was not raised in the superior court, and it could not have passed the initial substantive screening mandated by RAP 2.5(a)(3).

 

The superior court complaint and the summary judgment motion paperwork show no “taxation-without-representation” claims or arguments were raised in the superior court action.  That means when that case went up on appeal the appellate courts only could have considered that claim if it passed a threshold inquiry – a determination by the appellate bench that it could succeed.  RAP 2.5(a)(3) requires this initial determination that a newly-raised claim could succeed as a means of preserving limited appellate judicial resources.

 

RAP 2.5(a) is there to prevent weak issues from being raised for the first time in the appellate courts; claims generally must be litigated in lower courts to fully frame the facts and law that are disputed.  This mandatory initial screening process and the reasons for it are described in _State v. WWJ Corp._, 138 Wn.2d 595, 980 P.2d 1257 (1999).

 

What did though for the special interests getting rich off appointive board financing practices is ignore that required screening process.  The Article XI sec. 12 claim they considered challenging the right of that appointive board to tax had absolutely no chance of succeeding on the merits.   We know that because the _Larson_  majority goes so far as to label it “fatuous”.  Yet they not only considered that claim, they go on for pages about it, and then conclude that the SPMA (and its ilk, including its twin-sibling Sound Transit) can use appointive boards to abuse taxpayers.

 

That opinion Owens signed off on introduces a noxious new legal standard giving far too much power over people to appointive-board taxing districts.  Here it is:

 

delegation of taxing power [to an appointive board] is permitted when 'the Legislature clearly defines the purpose of the delegation and creates procedural safeguards to control arbitrary administrative action'

 

The internally-quoted part there was lifted from a 1972 opinion that had absolutely nothing to do with a “taxation-without-representation” dispute (_Barry & Barry, Inc_).  The only action challenged in that earlier litigation was the conduct of the state Director of the Department of Motor Vehicles who was following a state statute and putting into place a regulation that “established a schedule of maximum fees which can be charged by employment agencies, based on a percentage of the monthly salary of the position found for a client of an agency.”

 

That earlier case was a police power regulatory action dispute.  That public official was required by a statute to set maximum fees for employment agencies to protect the public by preventing job seekers from being gouged.  The legal standard applied there was appropriate in such a case.  However, taking that legal standard and applying it in a case when the extent of the taxing and bond selling powers delegated to an appointive-board government is challenged is completely inappropriate.

 

That 1972 opinion did not involve any taxing, any undertakings by an appointive board, or even any actions by a local government.  If Owens had been acting in an honest and ethical manner, which he was not, he would have used the correct legal standard that applies in “taxation-without-representation” disputes.  When that kind of challenge is raised it is incumbent on judges in this country to follow the proscriptions of the US Constitution.  We’re still Americans, even though that is an inconvenient fact for the taxing class of this state and its enablers like Owens.

 

Americans elsewhere are afforded far more protections under the US Constitution against attempted delegations of legislative authority to political appointees who run local taxing districts.  The US Supreme Court set out the appropriate analytic framework in _Sailors v. Kent Bd. of Education_, 387 U.S. 105 (1967).  That opinion describes how Americans have a right to vote for and against local government policy makers who wield traditional legislative powers.  That’s the law of the land, and it’s the analysis that must be applied in “taxation-without-representation” disputes.

 

Owens (and her colleagues) know that – they just don’t want to be troubled by inconvenient constitutional limits that their political supporters don’t like.  So what does that bench do?  The majority invents a weak new legal standard for SPMA and Sound Transit, one designed to allow those taxing districts to abuse people.

 

Another thing about the _Larson_ majority opinion is that it falsely asserts that five opinions stand as precedents for the proposition that broad policy-setting powers relating to taxing, bond-selling, and setting massive megaproject budgets may be delegated by the state to local governments with appointive boards.

 

In each of those five prior opinions the acts challenged were limited and circumscribed by legitimate legal standards.  The very limited powers at issue in those five opinions possessed by the officials were not even close to legislative authority, which is what SPMA and Sound Transit were delegated.

 

None of those five opinions involved situations where a local government controlled by political appointees is wielding legislative powers, let alone extraordinary legislative powers such as deciding how much tax to impose, which taxes to impose, how long taxes should be imposed, whether securing long-term bonds by unlimited billions of dollars of regressive taxes is appropriate, etc.  Those five lawsuits involve challenges to such ministerial functions as limiting how much employment agencies can charge for their services and the right of water utility managers to charge non-resident customers who are hooked up to that utility the same rates as resident customers.  Such administrative functions do not permanently impact the public, and are not anywhere near as subject to abuse, as the powers delegated to the appointive boards of SPMA and Sound Transit.

 

No fair-minded person could believe the holdings in those five opinions are good precedents for an analysis of whether the following powers delegated to appointive board local governments are excessive:

 

- they don’t involve new general taxes imposed by political appointees,

 

- they don’t involve undertakings anything like using bond contract security terms to irrevocably commit a taxing district to collect a general tax at or near the maximum rates for decades,

 

- they don’t involve appointees taxing and spending where the spending powers include throwing unlimited billions of dollars at transportation megaprojects,

 

- two of them don’t involve any new revenue-raising,

 

- two of them only involved a challenge to state administrative officials setting modest licensing fees for regulating businesses that choose to do business in the state where regulation to protect the public was necessary, and

 

- two of them only involved a challenge to water utility rates being charged to users of the water residing in the utility service area, but outside some city where the utility is based.

 

Four of those five opinions just deal with setting business license regulatory fees and water utility charges, which are actions that are not anything like the broad discretionary policy-setting powers delegated to the appointive boards of SPMA and Sound Transit.  With those regulatory fees and utility charges statutes cap the appointees’ discretionary spending rights to the actual regulatory and utility costs.  Those are narrow, closely circumscribed types of spending.  In contrast, the appointees comprising the ST and the monorail authority boards possess exceedingly broad spending powers (essentially unlimited in amount), plus they get to set huge construction budgets, sell bonds, and site entire rail facilities.  Those are extraordinary governmental actions, completely unlike the ministerial functions addressed in those five prior opinions.  

 

Owens and the rest of the majority did not believe those five opinions were good precedents.  They just used them to try to hide the big constitutional flaw for their friends and political supporters.  What that bench wants to cover up for the taxing class is that Americans have a constitutional right to vote for local government legislators, and the board members controlling SPMA (and Sound Transit) were delegated, and wield, extensive legislative powers. 

 

Let’s take a close look at a passage from the _Larson_ majority opinion.  Here the majority ascribes much (undue) significance to “the voter approval”:

 

Moreover, Seattle voters expressly approved the creation of SMP, the imposition of the MVET, and the selection process of the governing board as required by RCW 35.95A.020(2),  . 030(1), and .080(5).  Appellants claim that it is irrelevant that voters in Seattle approved the creation of SMP and the selection process for the board of SMP.  As discussed above, Appellants again inappropriately rely on _Amalgamated Transit_.   Long standing Washington case law and commentators agree that voter approval of a local board selection is an appropriate delegation of power to an appointed board of a municipal corporation.   See, e.g.,  _State ex rel. Tax Comm'n v. Redd_, 166 Wash. 132, 140-41, 6 P.2d 619 (1932) (permissible corporate authorities of municipal corporations include municipal officers who are appointed in some mode to which local persons have given their assent); 1 THOMAS M. COOLEY, THE LAW OF TAXATION 207 (4th ed. 1924) ("Of course, if the people of a local district have in any way consented to the delegation of the power to tax to a local [appointive] board, they cannot contest the validity of the delegation of power.").

 

What the majority does there is twofold:  it ignores the controlling law, and improperly points to the approval of a local ballot measure as the single relevant factor. 

 

In 1967 the US Supreme Court described how the US Constitution limits the ability of state legislatures to delegate powers to appointive boards.  State legislatures only are permitted to delegate minor powers to municipal corporations controlled by political appointees.  The exact phrase used is “essentially administrative functions” – those alone are what may be wielded by appointive boards.  What kinds of powers are those?   Powers that municipal corporation staffers traditionally have undertaken without having to first obtain formal approval or direction from the governing board (eg, from a city council, a county council, a port commission, etc.).  The majority here sanctions the continuing violations by SPMA and Sound Transit of that “right to vote” limit.  It wants those taxing districts to wield broad policy-setting powers relating to taxing and financing activities, so the political appointees comprising those boards can cause financial harm to individuals and families.  Those kinds of powers are well beyond what can be delegated to any appointive board taxing district.

 

That passage from the _Larson_ opinion ascribes huge and entirely unwarranted legal significance to that November, 2002 SPMA ballot measure.  Why was that done?   Because the majority wanted to disregard what the US Supreme Court said, and because it needed something to hang its hat on.  The law doesn’t support the outcome they wanted to reach, so they build a bogus analysis around the fact of that vote.  That passage is rotten to the core.  It stands for an untenable proposition:  protections afforded people by the US Constitution regarding the extent of powers delegated to an appointive board can be eliminated for generations by a single local taxing district ballot measure.

 

In the fourth sentence of that passage quoted above Owens and the rest of the majority describe what they claim is an established legal principle:  “voter approval of a local board selection is an appropriate delegation of power to an appointed board of a municipal corporation”.

 

Go ahead – reread that.  It won’t make any more sense than when you first read it.  That passage is meant to be incomprehensible - it's not just you who can't understand it.  It is not supposed to make sense.  The justices wanted to sanction SPMA’s (and Sound Transit’s) unlimited taxing, megaproject-budget-setting, bond-selling, and spending powers, and they couldn't come up with a rational way of doing that.  That’s why they opted for murky gibberish in their opinion. 

 

Here’s one way we can tell that assertion is bunk.  The voters in Seattle at the 11/2002 general election in fact did NOT delegate any power to SPMA’s appointive board.  The voters could not have delegated any powers to that board – voters do not have any inherent taxing (or other) powers to delegate, and under the constitution only the state legislature may delegate powers to municipal corportations.

 

As a matter of constitutional law the state legislature alone has the power to delegate powers to local taxing districts, and it must do that by enacting statutes.  In particular, Article XI sec. 12 of the state constitution specifies the state legislature alone has the power to delegate taxing powers to local corporate authorities:

 

 The legislature shall have no power to impose taxes upon counties, cities, towns, or other municipal corporations, or upon the inhabitants or property thereof, for county, city, town, or other municipal purposes, but may by general laws vest in the corporate authorities thereof the power to assess and collect taxes for such purposes.

 

What Owens and the rest of the majority assert in that passage from _Larson_ is directly contrary to what the constitution allows.  They assert it was voters who “delegated” powers, including the power to tax, to that local government.  The fact that the November, 2002 SPMA ballot measure got enough votes COULD NOT amount to a delegation of taxing power to a local taxing district because only the state legislature has the right to delegate that power.

 

Owens is so fixated on ensuring unaccountable taxing districts will get to continue taxing to the max she signed off on this opinion that completely ignores what the constitution says about the state legislature’s exclusive right to delegate taxing powers.  She goes so far as to condone the entirely bogus rationale invented for that opinion (e.g., voters allegedly now possess the right to delegate taxing powers to an appointive taxing district board via “approval of a local board selection” – whatever that means).

 

Here’s another way that everyone can see that assertion from the passage quoted above is bunk.  Anyone actually believe a “voter approval of a local board selection” ever took place?   Hint:  it did not.

 

Voters did not approve “a local board selection”.  What voters approved at the November, 2002 general election was a proposed ordinance called “Citizens Petition No. 1”.  That ordinance is what enabled the ETC to appoint whomever it decided to the board of the SPMA, and it allowed the SPMA to start taxing and spending.

 

“Citizens Petition No. 1” did not identify who would be selected to serve on the SPMA’s board, and it did not identify the methods or criteria that would apply when selections were made about which individuals would be appointed.  It is not “a local board selection”.

 

This thing the opinion calls “a local board selection” never existed.  The majority made up that "fact", and put it at the center of their analysis.   

 

Here again is that sentence from the passage Owens and her colleagues on the majority signed off on:

 

Long standing Washington case law and commentators agree voter approval of a local board selection is an appropriate delegation of power to an appointed board of a municipal corporation.

 

As referenced above, the November, 2002 SPMA ballot measure in fact could not have been a delegation of taxing power to the SPMA board because the constitution specifies the state legislature alone has the power to delegate taxing authority to local taxing districts. There’s another reason it’s clear the justices weren’t telling the truth about the legal effect of that vote.  We know that it was not any kind of delegation of governmental power to that appointive board by voters.  That’s because state statutes (and not the ballot measure) delegated to SPMA its taxing power.  The statutes the state legislature used for that purpose are RCW 35.95A.080 - .100.

 

There is only one opinion cited as a case-law precedent in that passage for the untenable proposition that voters (supposedly) delegated taxing authority to the SPMA (and by extention to Sound Transit) via “a local board selection”.  Here it is:

 

See, e.g.,  _State ex rel. Tax Comm'n v. Redd_, 166 Wash. 132, 140-41, 6 P.2d 619 (1932) (permissible corporate authorities of municipal corporations include municipal officers who are appointed in some mode to which local persons have given their assent).

 

The _Redd_ opinion involved a challenge to whether the state tax commission was within its rights to reapportion taxes among counties.  None of the claims there had anything to do with the propriety of voters approving a local government tax and spend program.  Likewise, nothing in that opinion had anything to do with analyzing whether the delegation by the state of taxing, spending, bond-selling, or rail-line-siting authority to a taxing district’s appointive board was excessive.

 

That “see, e.g.” citation is nothing but a loose paraphrase of an invalidated opinion out of a midwestern state court from early last century that is referenced in the _Redd_ opinion.  Here’s the full quote from that old Illinois opinion, which shows it stands for a principle completely different than how the majority used it in their 2006 _Larson_opinion:

 

As the object of this constitutional clause was to prevent the legislature from granting the power of local taxation to persons over whom the population to be taxed could exercise no control, it is evident that, by the phrase 'corporate authorities,' must be understood those municipal officers who are either directly elected by such population, or appointed in some mode to which they have given their assent.

 

The term “mode” there means “a manner, way, or method of doing or acting.”  The people of Seattle (in the case of the SPMA) and the people of the Sound Transit taxing district (in the case of that local government) in fact never assented to any particular mode of appointment for those boardmembers.    In the case of Sound Transit, a state statute (RCW 81.112.040) says the three county executives are given the power to appoint 14 of the 18 boardmembers.  That statute does not define any “appointment mode”, it just delineates who gets to do the appointing and which kinds of individuals may be appointed.  The county executives are free to use any method they want to appoint Sound Transit’s boardmembers.  They could throw a dart, they could condition appointment on covert pledges and kickbacks – there are no constraints on the mode of appointment.

 

This is another example of the justices making up facts for their legal analyses.  In the SPMA situation the ETC members and some city officials could do the appointing by any means they chose.  When it comes to Sound Transit, neither Sound Move (1996) nor ST2 (2008) allowed the population to give (or withhold) its assent to any methods or modes pursuant to which the county executives would select the appointees to fill 14 of the 18 seats on Sound Transit’s board.

 

In the case of Sound Transit the fact of the matter is that people here never gave assent to any mode of appointment.  That is because the state legislature specified that board selection process was to remain at the complete discretion of the three county executives.  Washington’s legislature did what Illinois’ state court said should not be done:  “the legislature [delegated] the power of local taxation to persons over whom the population to be taxed could exercise no control.”

 

Sound Transit was specifically designed so people here never would be able to control who serves on its board, and so the county executives always would be free to select malleable bobbleheads to fill those seats.  When the justices drafted their majority opinion in  _Larson_  they had Sound Transit firmly in mind.  They were well aware the people here did not approve the statutory board composition framework spelled out in RCW 81.112.040.  They also knew the people here had not assented to any methods or modes pursuant to which the county executives would select boardmembers.  That lack of any affirmative assent by the RTA’s captive population was an inconvenient fact, so the justices simply lied and said it happened.  Par for the course.

 

That old Illinois court holding was invalidated by the US Supreme Court in a handful of opinions from the 1960’s, including the 1967 _Sailors_ opinion.  The US Supreme Court has made it clear Americans have a US Constitutional right to vote individuals onto and off of local boards if the municipal corporation at issue was delegated traditionally-governmental policy setting powers.  That’s the proper legal limit for a “taxation-without-representation” analysis, and Owens and her colleagues ignored it completely.

  

The _Larson_ opinion Owens signed off on wraps up its short, bogus “taxation-without-representation” analysis (quoted above) by lifting a line from an old (1924) treatise on tax law.   That excerpt from the treatise does not amount to any kind of precedent for the untenable proposition for which it is cited (approval at an election of a taxing district ordinance precludes peoples’ rights to seek remedies in court).

 

One notable feature of that particular excerpt from the “Cooley” book is Judge Cooley did not write it.  He died 26 years before that 1924 edition came out.  The 1903 third edition (the final edition he personally produced) doesn’t contain that sentence, or anything like it.

 

The three opinions footnoted in support of that “Cooley” proposition in the treatise do not contain analyses addressing the legal issues implicated when appointive boards possess the broad policy-making powers that were delegated to SPMA and Sound Transit.  None of those three opinions involves challenges to excessive delegations of powers by a state legislature to appointive local boards.  Moreover, the people challenging the actions in those three cases still could control the policies of the subject public entities by political means.  In contrast, people have no means of controlling the policies or managements of taxing districts like SPMA and Sound Transit.

 

There’s another reason the analyses employed in those three old opinions could not be considered valid now, and certainly not for the proposition cited in that passage of _Larson_.  Now the legal standard the US Constitution requires pertains.  It is the one described by the US Supreme Court in the  _Sailors v. Kent Bd. of Education_ opinion (Americans have the right to vote policy-makers on and off local government boards).  That’s the current law of the land, not what is expressed in that sentence some editor of a 1924 compendium of tax law opinions made up.

 

What _Larson_ shows is Owens misusing her position on the highest court in the state.  She signed off on that opinion not to render a fair outcome, but instead to reach a result for a favored litigant that is contrary to law. 

 

 

 

IV.

 

Here is another example of Owens flouting the law and providing completely unjustified case law to this same interest group:  _Pierce County v. State_, 159 Wn.2d 16 (2006).  That is the second appellate proceeding relating to Tim Eyman’s initiative I-776.  The initiative dealt with aspects of car tab taxes.  Eyman’s entity “Permanent Offense” was the intervenor taxpayer whose claims the court supposedly was addressing in the _Pierce County v. State_ opinion.

 

The majority invents a lame claim, then shoots it down using ringing rhetoric.  Here is the start of the “taxation-without-representation” analysis in that opinion:

 

Next, the intervenors contend that the delegation of taxing authority to Sound Transit was unconstitutional because its board members are appointed.

 

That assertion is a bald-faced lie.  The source document (the appellate brief) shows the intervenors DID NOT raise that argument.  The Table of Contents of the “Brief of Appellants” is on page “i” of the following:

 

http://www.soundpolitics.com/I-776_Opening_Appeal_Brief.pdf .

 

That’s the document where the claims are identified, and none of them is anything like a claim that “the delegation of taxing authority to Sound Transit was unconstitutional because its board members are appointed”.

 

Another way everyone can tell Owens and the others comprising the majority simply were lying about what the taxpayers were arguing is by running a search of that brief for the term “taxing authority”.  It occurs six times.  In none of those instances does it appear in anything like an argument that the delegation was unconstitutional.

 

Yet another way we can tell Owens and the rest of the majority lied about the existence of that claim also involves looking at what the opening appellate brief says.  Rule of Appellate Procedure 10.3(6) requires that appellants set out in their brief “The argument in support of the issues presented for review, together with citations to legal authority and references to relevant parts of the record.”  The intervenors set out several arguments, but they did not argue “that the delegation of taxing authority to Sound Transit was unconstitutional because its board members are appointed.”

 

What the brief DOES say is inconsistent with that (supposed) claim the justices made up for their opinion.  On page 40 of that brief the intervenors assert Sound Transit has a “representative” board.  They were wrong about that.  What that assertion shows though is how Owens and the other justices are perfectly willing make up BS claims to shove in the mouths of disfavored litigants so they can give their political allies big unjustified wins.

 

The next lie from the majority in that bogus “taxation-without-representation” analysis is about what legal authority the intervenors supposedly relied on.  The justices falsely assert they had been requested to determine whether “Washington Constitution article XI, section 12 and article VII, section 9” precluded the delegation of taxing authority to Sound Transit.  They just made that up, and attributed it to the taxpayers.  That’s how they give the kind of unwarranted case law the special interest group they favor wants.

 

Take a look at the Table of Authorities in the brief (link above).  Neither Art. XI sec. 12 nor Art. VII sec. 9 are even mentioned in that brief.

 

The next step the majority took in this _Pierce County v. State_ opinion was to use a newly-minted and entirely inappropriate standard of review as the center of the key analysis passage.  This is Susan Owens way of being a judge – you make up a lame claim, and then you make up a bogus legal standard for the analytic passage of your opinion.

 

In the real world of American laws, the legal standard the US Supreme Court describes in the 1967 _Sailors_ opinion pertains in the event a court is presented with a claim that excessive governmental powers were delegated to an appointive board.  This 2006 opinion Alexander signed off on uses a standard of review he and that same majority invented eight months previously (in _Larson_).  It’s the one that starts from the false proposition that the governmental powers at issue are “administrative”, and then it looks at supposed “procedural safeguards”.

 

Three opinions are cited in this passage for the proposition that challenges to the delegation of taxing powers to appointive boards should be reviewed using this standard of review (_Larson_ and two others).  The reasons _Larson_ is a dishonest and fundamentally flawed opinion are discussed above.  The other two cases identified do not even involve delegations of broad and discretionary powers to appointive governmental boards.

 

This opinion is noxious.  Owens and her colleagues made up a big claim, then used a bogus legal standard to “resolve” it.  Their reasoning is entirely pretextual; it is dishonest to the core.  Why’d they issue this opinion with that particular passage?  To suck up to special interests in this state that want to cause significant and unwarranted financial damages to millions of people for generations.           

 

What’s the justices’ next slimy move in this analysis?  They determine the extent of the taxing powers delegated to Sound Transit are perfectly fine because of four so-called “procedural safeguards”.   The presence of these ostensibly would prevent Sound Transit’s unaccountable boardmembers from acting in ways that would harm the interests of people as taxpayers.  In fact, none of those four limits would curb in any way the extraordinary discretionary powers delegated by the state legislature to that taxing district.  Those powers include, and are not limited to, the right to decide how much regressive general taxing to do, the amounts of long-term bonds secured by tax pledges they may sell, and the right to set unlimited budgets for reserves, capital budgets, and operations costs.

 

Here’s the first so-called “procedural safeguard” identified in the _Pierce County v. State_ opinion:

 

[The taxes] have been clearly set forth and approved by the voters.

 

The only aspect of the proposed taxing “set forth” for voters is what was in the measure that went on the ballot (an increase in rates of taxes).  That is not any kind of taxing limit, and it affords no “procedural safeguard” against excessive taxing.  There is no end date when the higher taxing must stop, no dollar amount cap on how much more tax can be collected, and no limit on how much tax revenue can be spent on capital and/or operations costs.

 

Voter approval of this kind of ballot measure just starts higher tax collections – that’s the antithesis of a “procedural safeguard” against the political appointees controlling a government board abusing their taxing powers.

 

Here’s the second so-called “procedural safeguard” identified in the _Pierce County v. State_ opinion:

 

Sound Transit contracts with the Department of Licensing to collect the tax.

 

Again, that is not any type of limit on the unlimited taxing and spending authority delegated to this appointive board by the state legislature.

 

DOL and DOR will confiscate for Sound Transit as much car tab tax and sales tax (respectively) as they are told by Sound Transit’s board to confiscate.

 

Neither of those two state agencies has any authority whatsoever to limit how much tax the Sound Transit boardmembers impose.  DOL and DOR function as agents, hauling in as much tax from people and businesses as the appointees controlling that board instruct.

 

Sound Transit’s contracts with those state agencies for tax collection purposes does not amount to any kind of a “procedural safeguard” that could protect people against abuse of that taxing districts taxing powers.  Owens and her colleagues know that, but they needed to base their “reasoning” on something and this is one of the pretexts they came up with.

 

Here’s the third so-called “procedural safeguard” identified in that _Pierce County v. State_ opinion:

 

[A]lthough the members on the board are appointed, all but one of the board members are elected officials, providing the taxpayers a vote

 

The justices there are insinuating falsely that peoples’ votes could determine who serves on Sound Transit’s board.  The fact of the matter is the people in the RTA geographic area never will be able to exert any control over the policies or practices of that taxing district by their votes, no matter whom they vote for in any election.

 

Only three of the eighteen Sound Transit boardmembers are directly elected (the county executives).   The rest are political appointees.  The practical effect of such a structure is that political appointees always will comprise a supermajority sufficient to establish the policies for that taxing district.

 

Voting for or against any particular candidate in a city council race or a county council race never could bring about any new policy for Sound Transit.  In particular, peoples’ votes for or against some candidate – even if that person presently is an appointee on ST’s board – never could count for anything in terms of how much taxing (or spending, or bond selling, etc.) Sound Transit does.

 

Sound Transit’s unaccountable governance structure was set up that way on purpose, in response to how the local government upon which it was modeled (old-Metro) was found to be unconstitutional in 1990 (in _Cunningham v. Municipality of Metropolitan Seattle_, 751 F.Supp. 899 W.D.Wash. 1990).  Old-Metro was a representative government (not an appointive one).  The legal flaw it has was that it was violating the “one-person one-vote” rule of the U.S. Constitution.   

 

The lawyers who drafted Sound Transit’s enabling legislation (right after the _Cunningham_ opinion came out) had to avoid that flaw, so they designed the RTA with an appointive board.  That is why RCW 81.112.040(1) provides that 15 of the 18 Sound Transit board seats always are to be filled with political appointees.  Problem is, the lawyers who came up with that bright idea failed to consider another limit of the US Constitution – the one that that bars state legislatures from delegating to appointive local boards broad powers that are legislative in nature.

 

People never will have the power to control what that local government does by voting onto its board enough people who share their views about how it should operate.  People can not use their votes – at any election – to protect their interests as taxpayers from bad policies the appointees comprising Sound Transit’s board have set or will establish.  People also can not use their votes at any election to install a smarter, more frugal, or less corrupt board.

 

The justices know full well that taxpayers’ votes for or against candidates for any public offices never could effectuate new policies for Sound Transit, or change the policies it currently has in place – they just are blowing smoke when they insinuated otherwise in that opinion.

 

Here’s the fourth so-called “procedural safeguard” the justices rely on in their analysis of the taxation-without-representation passage of the _Pierce County v. State_ opinion:

 

[T]he courts provide any aggrieved person with standing to challenge any discriminatory, arbitrary, or unreasonable rates.

 

As a practical matter “any aggrieved person” is not capable of bringing and maintaining a lawsuit against an appointive-board-controlled taxing district on the grounds that excessive authority was delegated to it.  That’s especially true when that taxing district is Sound Transit. Moreover, the tax “rates” are immaterial to the key issues.  The “rates” could be reasonable, yet excessive taxing and other powers could have been delegated to the appointive board.

 

“[S]tanding to challenge” Sound Transit’s “rates” affords no substantive limit to the Sound Transit boardmembers’ powers to tax, spend, or sell long-term bonds.  That is true whether or not the levels of that government’s taxing and spending are reasonable, prudent, ethical, or comparable to the peers’.

 

The potential for some legal remedy that would be obtained via a lawsuit is not a “procedural safeguard”.   A judicial process to seek redress would not safeguard against the harm occurring.  Any remedy a court in theory could provide would not serve to prevent political appointees controlling a taxing district’s board from abusing their powers or making bad financing or spending decisions that harm the public’s interest.

 

Owens seems to enjoy endorsing this pretextual “procedural safeguard” the most, knowing as she does the justices routinely misrepresent in their opinions the actual legal challenges to taxing districts’ practices individuals bring before that bench.  She and her colleagues (and Sound Transit’s lawyers) undoubtedly got a good chuckle out of that one.

 

Those are four opinions in which Susan Owens acts dishonestly.  She’s a stain, and has demonstrated in spades her character is unfit for a position of authority in any judicial system.  Judges must treat all claims fairly, and she’s shown her inability to do that.