City of Spokane v. Horton ( 2017 )

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"1 SUSAN L. CARLSON
SUPREME COURT GLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
CITY OF SPOKANE,a municipal
corporation located in the County of No. 93788-5
Spokane, State of Washington,
Petitioner,
V. En Banc
VICKI HORTON,Spokane County
Assessor, and ROB CHASE, Spokane
County Treasurer, and THE STATE OF
WASHINGTON,by and through the
Department of Revenue,
Respondents.
Filed "
JOHNSON,J.—^Article VII ofthe Washington Constitution requires that all
taxes be uniform upon the same class of property. See CONST, art. VII, §§ 1,9, 10.
In February 2015,the city of Spokane (City) enacted an ordinance that granted a
local property tax exemption to senior citizens and disabled veterans. Relying on a
letter by the Department of Revenue(DOR)stating its belief that the ordinance
violates article VII, the Spokane County assessor and treasurer (collectively
County)refused to implement the ordinance. The issue in this case is whether the
City ofSpokane v. Norton, No. 93788-5
City's ordinance violates article VII ofthe Washington Constitution's uniform
property tax requirement.
The trial court ruled that the ordinance was constitutional and issued a writ
requiring the County to apply it. DOR filed a motion to intervene, and both DOR
and the County appealed the trial court's ruling. DOR was made a party for
purposes of appeal. On appeal, the Court of Appeals reversed and held that the
City's ordinanee violated article VII, section 9 ofthe Washington Constitution.^
City ofSpokane v. Norton, 196 Wn. App. 85, 87, 380 P.3d 1278(2016), review
granted, 187 Wn.2d 1017, 390 P.3d 342(2017). We affirm.^
Facts and Procedural History
In 2004,the City obtained voter approval for a street bond to pay for street
projects. The City initially planned to complete the projects over 10 years, then retire
the street bond under a 20-year retirement levy, a type ofexcess levy. See RCW
84.52.056. In 2014,the City completed the planned projeets but still had 10 more
years to pay off its remaining bond debt. The City proposed a new strategy to pay off
the bonds, as well as extend the City's street program for another 11 years. The
'Because the Court of Appeals held that the ordinance was unconstitutional, it did not
reach the issue raised by the County concerning whether the writ of mandamus was an
appropriate remedy.
^ The Washington State Association of Municipal Attorneys filed an amicus brief in
support of the City.
City ofSpokane v. Norton, No. 93788-5
proposal involved swapping out the $0,57 per $1,000 assessed value imposed under
the City's excess bond levy with an equivalent $0.57 increase in the City's regular
property tax rate. To do this, the City needed to raise its regular property tax levy by
more than the statutory levy lid. See RCW 84.55.010,.050. In November 2014,the
City referred a levy lid lift proposition to its voters and the voters approved. Acting on
information provided by the Spokane County Assessor's Office, the City represented
to voters that those who qualify for a tax exemption at the state level under RCW
84.36.381 would continue to be exempted from a portion ofthe new levy.
After voters approved the levy, however,the assessor's office informed the
City that those qualified under the state tax exemption would not be exempt from the
new levy.^ The City then attempted to work with the assessor's office to resolve the
issue until it was apparent the discussions were futile. On February 9, 2015,the City
enacted its own fix. Ordinance C-35231, at issue in this case. The ordinance
^ According to DOR,the distinction between a ballot proposition to raise the statutory
limitation on a regular levy(a levy lid lift) and a ballot proposition to authorize a special or
excess levy (an excess levy) has implications for persons receiving an exemption from taxes
under the state tax exemption, RCW 84.36.381. The legislature exempts qualified persons under
RCW 84.36.381 from paying excess levies, but requires them to pay regular property taxes at a
reduced rate. RCW 84.36.381(5)(a)-(b); WAC 458-16A-140(2). DOR believes that the City
proposed increasing the regular property tax rate by $0.57 per $1,000, and that therefore the
exempted individuals' total property taxes would also increase. During oral argument, there
seemed to be some confusion as to whether the ordinance was an excess levy or regular levy. See
Wash. Supreme Court oral argument. City ofSpokane v. Norton, No. 93788-5(May 18, 2017), at
5 min., 25 sec., audio recording by TVW,Washington State's Public Affairs Network, available
at http://www.tvw.org. The question of whether the ordinance was an excess levy or regular levy
seems to play a role, although neither party squarely briefed this issue. Regardless, we address
the issue as presented: whether the City has the power to grant a local tax exemption.
City ofSpokane v. Norton, No. 93788-5
authorizes a citywide local property tax exemption for everyone who would qualify
for the state exemption.
The County sought advice from DOR as to whether the ordinance was
consistent with Washington's laws and constitution. Relying on a letter from DOR
that stated the ordinance "creates an exemption that is not authorized under state law,'"
the County refused to implement the ordinance. Clerk's Papers at 92.
The City then filed this lawsuit, seeking a writ of mandamus compelling the
County to implement the ordinance. The Spokane County Superior Court granted the
petition and issued the writ, ruling that the ordinance was constitutional and that the
County breached its ministerial duty to implement it. After the writ was issued, DOR
filed a motion to intervene to protect the interests ofthe State. The superior court
made DOR a party for purposes of appeal.
The County and DOR appealed to Division Three ofthe Court of Appeals,
which reversed in a divided opinion. The majority opinion held that the ordinance
violated article VII, section 9 ofthe Washington Constitution because it resulted in a
nonuniform tax. The City sought this court's review, and we granted it.
Analysis
To determine whether the ordinance here is constitutional, some background
information on Washington's property tax system is necessary. Washington's
property tax system is regulated under constitutional and statutory provisions. Article
City ofSpokane v. Horton, No. 93788-5
VII ofthe Washington Constitution places restrictions on the assessment and taxation
ofreal property. Section 1 provides:
All taxes shall be uniform upon the same class of property within the
territorial limits ofthe authority levying the tax and shall be levied and
collected for public purposes only. The word "property" as used herein
shall mean and include everything, whether tangible or intangible,
subject to ownership. All real estate shall constitute one class: Provided,
That the legislature may tax mines and mineral resources and lands
devoted to reforestation by either a yield tax or an ad valorem tax at such
rate as it may fix, or by both. Such property as the legislature may by
general laws provide shall be exempt from taxation.
Const, art. VII, § 1. Section 1 provides that unless explicitly exempted from taxation
by the legislature, all real estate constitutes one class that must be taxed uniformly at
the same rate and the same ratio of market value to assessed value. Boeing Co. v. King
County, 75 Wn.2d 160,449 P.2d 404(1969). Tax uniformity is the "'highest and
most important'" of all requirements to our state tax system. Inter Island Tel Co.
V. San Juan County, 125 Wn.2d 332, 334 883 P.2d 1380(1994)(quoting Savage v.
Pierce County, 68 Wash. 623, 625, 123 P. 1088 (1912)). But absolute uniformity is
not required.
Section 2 limits the aggregate of all annual property tax levies on a particular
property to no more than one percent ofthe true and fair value ofthat property.
City ofSpokane v. Horton, No. 93788-5
Const, art. VII, § 2. However, section 2 allows taxing districts to impose additional
levies above the regular amount if voters approve under specific conditions."^
The Washington Constitution also sets forth an explicit exception from
uniformity in article VII, section 10:
Notwithstanding the provisions of Article 7, section 1 (Amendment 14)
and Article 7, section 2(Amendment 17), the following tax exemption
shall be allowed as to real property:
The legislature shall have the power, by appropriate legislation, to
grant to retired property owners relieffrom the property tax on the real
property occupied as a residence by those owners. The legislature may
place such restrictions and conditions upon the granting ofsuch relief as
it shall deem proper. Such restrictions and conditions may include, but
are not limited to, the limiting ofthe reliefto those property owners
below a specific level ofincome and those fulfilling certain minimum
residential requirements.
The legislature has exercised this power by exempting qualifying retired property
owners from paying excess levies, and allowing the regular property tax rate to be less
than full market value oftheir primary residence depending on their income. RCW
84.36.38l(5)(a)-(b),(6); WAC 458-16A-140(2). The exemption applies to all
property taxes, regardless of whether they are imposed by the State or by a local
taxing jurisdiction. See generally RCW 84.36.381.
A supermajority of voters must approve "excess" levies.
City ofSpokane v. Horton, No. 93788-5
The Washington Constitution generally vests taxing power in the state
legislature. CONST, art. I, § 1. Municipal corporations have no inherent right to levy
taxes. State ex rel. King County v. State Tax Comm.'n, 174 Wash. 668, 671,26 P.2d
80(1933). However, article VII permits the legislature to delegate tax powers to
municipal corporations. Therefore, a local jurisdiction's taxing authority is derived
from legislative grant specified by the Washington Constitution. CONST, art. VII, § 9.
Article VII, section 9 provides:
The legislature may vest the corporate authorities of cities ... with
power to make local improvements by special assessment, or by special
taxation of property benefited. For all corporate purposes, all municipal
corporations may be vested with authority to assess and collect taxes and
such taxes shall be uniform in respect to persons and property within the
jurisdiction ofthe body levying the same.
The legislature has granted code cities property tax authority through a number
ofstatutory provisions. Relevant here, RCW 35A.11.020 provides that "[wjithin
constitutional limitations, legislative bodies of code cities shall have within their
territorial limits all powers oftaxation for local purposes except those which are
expressly preempted by the state as provided in RCW 66.08.120, 82.36.440, '
48.14.020, and 48.14.080."(Reviser's note omitted.)RCW 35A.11.030 provides that
such "[pjowers of... taxation" may be exercised "in the manner provided" by Title
35A RCW and the general laws ofthe state.
City ofSpokane v. Norton, No. 93788-5
Under the state system, cities and other taxing districts may annually impose
regular property tax levies on real and personal property within their geographic limits
to meet their budgeted government operations. RCW 84.36.005; RCW 84.52.010-
.020. Many constitutional and statutory constraints limit these jurisdictions' taxing
powers. One restriction is the ability to increase regular levies from year to year.
RCW 84.55.010. Under this "levy lid," taxing districts may levy only as much as in
the preceding year plus an amount anticipated for new construction and improvements
to property. If a taxing district wants to exceed the yearly limitation, it may do so by
seeking "levy lid lift" approval from a majority ofits voters. See RCW 84.55.050.
While a levy lid lift allows the taxing district to increase its levy amount, it does not
relieve the taxing district from any ofthe other statutory or constitutional limitations
imposed on regular levies. RCW 84.55.050.
The Court of Appeals held that the City's ordinance was unconstitutional
because it violates the uniformity requirement of article VII, section 9. It held that
the ordinance violates uniformity because it applies two different regular property
tax rates to real property in the city and creates different assessment ratios between
real property owned by its exempted citizens and real property not owned by its
exempted citizens. It further held that section 10 makes clear that only the
legislature may grant exemptions, and that power has not been conferred on
municipal corporations.
City ofSpokane v. Horton, No. 93788-5
As stated earlier, article VII, section 9 ofthe Washington Constitution
enables the legislature to vest municipal authorities with the power to tax for local
purposes, subject to conditions and limitations as the constitution or the legislature
may prescribe. Carkonen v. Williams, 76 Wn.2d 617, 627, 458 P.2d 280(1969).
The legislature exercised this authority when it prescribed code cities all powers of
taxation "within constitutional limitations," RCW 35A.11.020, and "in the manner
provided" by state law. RCW 35A.11.030.
The City argues that RCW 35A.11.020's broad delegation of"all powers of
taxation" includes the power to exempt. It argues that "within constitutional
limitations" cannot be interpreted to limit "all powers oftaxation" to only the power
to assess and collect. The City does not dispute that the levy lid lift is subject to
uniformity requirements generally, but that perfect uniformity is not required under
the constitution. Relying heavily on Town ofTekoa v. Reilly, 47 Wash. 202,208,91 P.
769(1907){Tekoa), the City argues that municipalities have the authority to grant
reasonable tax exemptions that promote the "general welfare ofthe people." Judge
Fearing embraced this argument in his dissent in the Court of Appeals opinion below.
Tekoa involved a case where the plaintiff challenged a local street poll tax,
enacted in 1905, that was assessed only on men between the ages of21 and 50 years.
The poll tax applied based on residency; property ownership was not considered. The
City ofSpokane v. Horton, No. 93788-5
plaintiff argued that an exemption granted to women and men under 21 and over 50
rendered the tax nonuniform, in violation of article VII, section 9. In upholding the
tax, this court reasoned that perfect uniformity oftaxation is unattainable, stating that
in adopting the constitution, the people ofthis state
did not propose to send the tax gatherer to the almshouse,the orphan
asylum or the nursery, nor did they propose to lay a tax on the inmates of
these institutions. In other words,they fully understood that if a street or
road poll tax should be imposed, certain classes of persons would of
necessity be exempt from the imposition,
Tekoa,47 Wash, at 205.
The court noted that the constitution was "not the beginning oflaw." Tekoa,47
Wash, at 206. It cited preconstitutional territorial law imposing a poll tax that
exempted indigent and mentally disabled persons and noted that the first legislature to
assemble under the state constitution imposed a poll tax with similar exemptions. The
court concluded that had the framers ofthe constitution intended to change the status
quo,they would have expressly said so:
Are all these charter provisions to be held for naught, simply because the
constitution contains the general altruistic declaration that taxes shall be
uniform with respect to persons and property? Had the framers ofthe
constitution been dissatisfied with the existing order ofthings would we
not expect to find some more satisfactory evidence oftheir discontent?
Tekoa,47 Wash, at 206-07. Significantly, the opinion stated that local taxes need not
be '"as nearly equal as a mathematical calculation can make them,'" but merely '"as
10
City ofSpokane v. Norton, No. 93788-5
nearly equal as is consistent with the general welfare ofthe people, and an equitable
distribution ofthe public burdens.'" Tekoa,47 Wash, at 208(quoting City of
Faribault v. Misener, 20 Minn. 396, 398(1874)). The court held that the poll tax did
not violate article VII, section 9 ofthe Washington Constitution.
The City argues that Tekoa controls the outcome ofthis case because article
VII, section 9 does not distinguish between poll taxes and property taxes. Judge
Fearing's dissent below goes on to discuss that despite recent case law highlighting
the importance oftax uniformity, no cases have specifically involved express tax
exemptions. The dissent dAQ&Belas v. Kiga, 135 Wn.2d 913,959 P.2d 1037(1998),
as the most analogous case.
Belas involved a state referendum that limited the amount of an assessed
valuation increase per year for rapidly appreciating property. This court invalidated
the referendum on the basis of article VII, section 1, the provision addressing state,
not city, taxation. Under the referendum, a formula established a valuation method
where rapidly appreciating property owners did not pay the same rate for assessed
valuation as other property owners and therefore the burden oftaxation shifted to
owners of property that did not experience large value increases. In Belas, DOR
argued that the value averaging was valid under the legislature's constitutional power
to grant tax exemptions. Unlike article VII, section 9, section 1 states that "[s]uch
property as the legislature may by general laws provide shall be exempt from
11
City ofSpokane v. Horton, No. 93788-5
taxation." This court in Belas reviewed the referendum's history and did not find any
promotional materials describing the referendum as creating a tax exemption.
Therefore, the court concluded that the measure was not a tax exemption.
Significantly, the court noted that exemptions from taxation were permissible under
article VII, section I.
In response to this argument,DOR argues that "within constitutional
limitations" means strict uniformity according to article VII, sections I and 9. The
County and DOR argue that Tekoa is distinguishable from this case because Tekoa
did not involve a property tax, which we have tended to require more or stricter
uniformity. The County argues, and the Court of Appeals majority agreed, that
historically poll taxes and property taxes have been treated differently. The Court of
Appeals cited a law review article that noted two different standards for uniformity
based on property taxes and nonproperty taxes:
From the aspect of classification ofthe subjects oflocal taxation,
the effect ofthe uniformity requirement of section nine is not the same in
the case oflocal taxes on property as in the case oflocal taxes other than
property taxes. As applied to property taxes which local subdivisions are
empowered to levy, the "uniformity" required is that stated in section 1,
article VII, because this section obviously applies to all taxes on
property, whether levied by the state for state purposes or by a county,
city, school district, or other subdivision for local purposes.... But as to
taxes on persons, which are also within the contemplation ofsection
nine, uniformity permits any reasonable classification ofthe subjects of
taxation.
12
City ofSpokane v. Horton, No. 93788-5
Alfred E. Harsch & George A. Shipman, The Constitutional Aspects of Washington's
Fiscal Crisis, 33 WASH,L.Rev. 225,263-64(1958)(footnote omitted). Respondents
also assert that our case law supports a distinction between property and poll taxes.^
DOR's Suppl. Br. at 18-19; Suppl. Br. ofResp'ts Spokane County at 8-9.
In addition, the County and DOR note that the taxes in Tekoa were taxes that
the legislature expressly authorized towns to enact. Tekoa,47 Wash, at 203("The
validity ofthe legislative act under which the tax was imposed is the principal
question raised by the appeal."). Here,the legislature has not expressly authorized a
property tax exemption as it existed in Tekoa.
The dissent embraces the City's argument that the limited constitutional
authority for the legislature to enact exemptions, coupled with the reasoning of Tekoa
and the statutory delegation oftaxing authority under RCW 35A.11.020, means that a
city(and each city) possesses the power to enact property tax exemptions. This does
not make sense for several reasons. First, as stated above, Tekoa analyzed a statute
delegating authority to cities to enact a poll tax, which differs constitutionally from
how uniformity requirements apply to property taxes. Second, poll taxes existed
^ See Covell v. City ofSeattle, 127 Wn.2d 874, 890, 905 P.2d 324(1995); MacLaren v.
Ferry County, 135 Wash. 517, 520, 238 P. 579(1925); Nipges v. Thornton, 119 Wash. 464,470,
206 P. 17(1922); Thurston County v. Tenino Stone Quarries, Inc., 44 Wash. 351, 354-56, 87 P.
634(1906).
13
City ofSpokane v. Horton, No. 93788-5
before statehood, while the property tax exemption authority at issue here was created
by express constitutional amendment in 1966. The dissent identifies no cases citing
Tekoa as supporting this broad implicit delegation of authority when it comes to
property taxes.
And the dissent's view makes no sense in the context of constitutional
uniformity requirements specific to property taxes. In the dissent's view, evidently,
each city could choose, or not choose, to enact property tax exemptions within the
constitutional limitations and potentially establish different eligibility standards,
which could result in a patchwork system of property tax rules, thereby defeating the
constitutional principles requiring uniformity of property taxes.
We agree with the Court of Appeals that Tekoa does not control. As the Tekoa
court notes, it was significant that the poll tax at issue had preconstitutional roots. A
similar poll tax had been enacted in 1881 in the territorial legislature, which exempted
individuals the poll tax at issue sought to exempt. Here, the City's tax exemption
ordinance lacks a similar history. Prior to the 1966 constitutional amendment that
added article VII, section 10, there were no property exemptions similar to those at
issue here.
14
City ofSpokane v. Horton, No. 93788-5
Statutory interpretation also supports this conclusion. The City argues that
ROW 35A.11.020 grants it all powers oftaxation including exemption power. We
disagree. The delegation ofpowers oftaxation under RCW 35A.11.020 is specific and
limited by the statute's express language. The statute provides that code cities have
powers oftaxation within constitutional limits. It does not, nor could it, expand or
vary the constitution's uniformity requirements. While RCW 35A.11.020 is a grant of
authority, the constitution expressly authorizes only the legislature the authority to
enact an exception to the uniformity requirement. See Const, art. VII, § 10("The
legislature shall have the power ... to grant... relieffrom the property tax."). Absent
the constitutional provision giving the legislature limited authority to establish
exemptions, the uniformity requirement prevents such action. No constitutional
provision similar to article VII, section 10 authorizes a city to grant tax exemptions;
therefore, a city does not possess the power to grant tax exemptions.
We affirm the Court of Appeals and find the ordinance unconstitutional.^
^ The City argues that respondents had no authority to consider the legality of the
ordinance and that we should reinstate the writ without deciding whether the ordinance is
constitutional. While the ministerial nature of an official's duty is a prerequisite to obtaining a
writ of mandamus, it does not compel us to grant a writ. See Brown v. Owen, 165 Wn.2d 706,
724, 206 P.3d 310(2009)(mandamus proper to compel ministerial duty only because
"[djirecting the performance of a discretionary duty would 'usurp the authority ofthe coordinate
branches of government'"(quoting Walker v. Munro, 124 Wn.2d 402, 410, 879 P.2d 920(1994))). Even where a duty may exist in statute, we will not compel a state official to facilitate
an unconstitutional act, which means the constitutionality of the underlying enactment needs to
be addressed. See Dep't ofEcology v. State Fin. Comm., 116 Wn.2d 246, 252, 804 P-2d 1241
15
City ofSpokane v. Norton, No. 93788-5
WE CONCUR:
4
Hid (f7
(1991)(reaching the issue of whether lease-ptirchase agreement violated state constitution's debt
limit after deciding that the writ of mandamus was available and proper).
16
City ofSpokane v. Horton, et al.
No. 93788-5
MADSEN,J.(dissenting)—I disagree with the majority's conclusion that the city
of Spokane (City), by exempting senior citizens, disabled veterans, and other low-income
tax payers from a municipal property tax, enacted an unconstitutionally nonuniform tax
and exceeded the taxing power constitutionally granted to municipalities in Washington.
Notably, the majority concludes that Town ofTekoa v. Reilly, 47 Wash. 202, 91 P.
769(1907) does not apply to the facts of this case, and that a municipality may only
impose property taxes that are strictly uniform. However, Tekoa makes clear that taxes
imposed by a municipality, pursuant to article VII, section 9 of the Washington State
Constitution, need not be absolutely uniform so long as the taxes are "as nearly equal as
is consistent with the general welfare of the people." Id. at 208.
Moreover,I disagree with the majority's narrow interpretation ofRCW
35A.11.020, in which the legislature grants code cities "all powers of taxation," subject to
constitutional limitation. In the majority's view, the constitution limits code cities to the
power to assess and collect taxes. However, this interpretation fails to account for article
VII, section 10, which grants the legislature the power to exempt retired property owners
from property tax, and this court's interpretation ofthe uniformity requirement. As we
No. 93788-5
Madsen, J., dissenting
held in Tekoa, the power to exempt classes of individuals from property taxes is
constitutional, and the fact that section 10 specifically grants this power to the legislature
is of no significant consequence.
Because I find that the property tax imposed by the City does not violate
uniformity and the City may enact a property tax exemption, it is also necessary to
determine whether the trial court appropriately issued a writ of mandamus. I would hold
that mandamus was an appropriate remedy, and would affinri the trial court's order.
Analysis
In Washington, the threshold issue in assessing the constitutionality of a tax is
whether that tax is applied uniformly. See CONST, art. VII, § 1. Taxes imposed by a
municipality are also subject to the uniformity requirement. Id. § 9.
In Tekoa, the court interpreted the article VII, section 9 unifomiity requirement in
a challenge to the constitutionality of a local poll tax imposed on males between the ages
of 21 and 50 years old. 47 Wash, at 203. The tax explicitly exempted volunteer firemen,
and implicitly exempted any person that was not a male between the ages of 21 and 50
years old. Id. at 203-04. In upholding the constitutionality of this tax, the court focused
its analysis on the uniformity requirement in article VII, section 9, which states, "'[A]ll
municipal corporations may be vested with authority to assess and collect taxes, and such
taxes shall be uniform in respect to persons and property within the jurisdiction ofthe
body levying the same.'" Id. at 203 (emphasis added)(quoting CONST, art. VII, § 9).
No. 93788-5
Madsen, J., dissenting
The Tekoa court held that exempting a class from a tax "violates no provision of
the state constitution" if done in a reasonable and proper marmer. Id. at 209. In support
of its holding, the court explained:
"Taxes are to be 'as nearly equal as may be'; not as nearly equal as a
mathematical calculation can make them, but as nearly equal as is
consistent with the general welfare of the people, and an equitable
distribution of the public burdens."
Id. at 208 (quoting City ofFaribault v. Misener, 20 Minn. 396, 398 (1874)). The court
observed that perfect unifonnity is procrustean, unattainable, and a "'baseless dream.'"
Id. at 205, 208 (quoting Edye v. Robertson, 112 U.S. 580, 595, 5 S. Ct. 247, 28 L. Ed. 7981884)). Tekoa makes clear that the legislature could not have intended the inequitable
results that surely would flow from strict tax uniformity. Id. at 208("'The constitution
does not require a theoretical equality at the expense of substantial equity....[T]he
legislature must deviate to some extent.'"(quoting Misener, 20 Minn, at 398-99)).
I would apply the holding in Tekoa that a reasonable exemption does not violate
the uniformity requirement of article VII, section 9, to the tax enacted by the City.
Interestingly, the majority concedes that "absolute uniformity is not required," yet
reaches the opposite conclusion in this case. Majority at 6. The majority argues that
Tekoa does not apply by distinguishing the tax in Tekoa, a poll tax, from the tax here, a
property tax.'
'The majority is confused by Tekoa''s application in this case. This is unsurprising as the
majority is so focused on Tekoa's irrelevant distinguishing facts that it fails to comprehend
Tekoa's relevant precedential value. Specifically, the majority states:
No. 93788-5
Madsen, J., dissenting
This is unpersuasive. I agree with the general proposition that property taxes are
dissimilar from poll taxes in some ways. However,the inherent differences between
property taxes and poll taxes is not the issue. Rather, the issue is whether property taxes
and poll taxes are treated differently with respect to the uniformity requirement in article
VII, section 9. Tekoa focused its analysis on interpreting the uniformity requirement in
article VII, section 9, which applies to both personal and property taxes. Moreover, there
is no indication that the court limited its interpretation of article VII, section 9 to apply
only to poll taxes. To that end, Tekoa answers in the negative, and the majority offers no
case that overrules, either explicitly or sub silentio, that court's "reasonable uniformity"
requirement. I see no reason to deviate from the analysis in Tekoa.
Despite Tekoa's general proposition that a reasonable tax exemption does not
destroy uniformity, the majority further concludes that the City, as a municipality, has no
constitutional power to enact a tax exemption. The City must possess the statutory and
constitutional right to enact property tax exemptions.
Tekoa analyzed a statute delegating authority to cities to enact a poll tax, which
differs constitutionally from how uniformity requirements apply to property taxes.
Second, poll taxes existed before statehood, while the property tax exemption
authority at issue here was created by express constitutional amendment in 1966.
Majority at 13-14. Tekoa is controlling because it defines "uniformity" under article VII, section
9, which is the same constitutional provision at issue here. While the majority's position latches
onto the fact that Tekoa involved poll taxes rather than property taxes, section 9's plain text does
not make any distinction between the two with regard to imiformity.
Finally, the majority attempts to discredit Tekoa by stating,"The dissent identifies no
cases citing Tekoa as supporting this broad implicit delegation of authority when it comes to
property taxes." Id. at 14. The precedential value of our cases are not contingent on citation in
subsequent cases. Indeed, this court's decisions are controlling unless they have been
subsequently overruled. Tekoa has endured no such negative treatment.
No. 93788-5
Madsen, J., dissenting
RCW 35A.11.020 states,
[wjithin constitutional limitations, legislative bodies of code cities shall
have within their territorial limits all powers oftaxation for local purposes.
(Emphasis added.) The majority reads "within constitutional limitations" narrowly and
concludes that because a municipality's power to exempt taxes is not expressly provided
in the constitution, it must be a limitation on code cities. The majority points to article
VII, section 10, which states that the legislature has the power to "to grant to retired
property owners relief from the property tax on the real property occupied as a residence
by those owners." CONST, art. VII, § 10. Because section 10 specifically mentions that
the legislature holds the exemption power, and no provision in the constitution explicitly
grants municipalities a similar power, the majority believes that property tax exemptions
are an exclusive power of the legislature.
However, the legislature did not intend such a narrow reading ofthis statutory
provision. Indeed, the legislature delegated authority to designated cities in the broadest
possible terms.
The purpose and policy of this title is to confer upon two optional classes of
cities created hereby the broadest powers of local self-government
consistent with the Constitution ofthis state.... All grants of municipal
power to municipalities electing to be governed under the provisions of this
title, whether the grant is in specific terms or in general terms, shall be
liberally construed in favor of the municipality.
RCW 35A.01.010. Following the exhortation of liberal construction, as the legislature
intended, we find "within constitutional limitations" must be interpreted to include all
constitutional acts, not just those explicitly granted to municipalities. The power to
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Madsen, J., dissenting
exempt certain individuals from property taxes is constitutional—article VII, section 10
grants that authority to the legislature, and nothing in the constitution prohibits the
legislature from delegating its section 10 exemption power.
By granting "all powers of taxation"^ to code cities, the legislature's intent is
clear—code cities are to have all taxing powers at the local level that the legislature
possesses at the state level. The City persuasively argues this point by demonstrating that
the legislature's intent has historically been clear when granting taxing authority to the
various classes of cities. See Suppl. Br. of Pet'r at 12. For example, the legislature
specifically grants second-class cities the power to assess, levy, and collect property
taxes. RCW 35.23.440(46). An unclassified city is granted the authority to levy and
collect property taxes. RCW 35.30.010(3).
Unlike second-class and unclassified cities, the legislature does not limit a code
city's taxing power. Rather, the legislature intended to grant code cities all powers of
taxation at the local level that the legislature possessed at the state level—including the
power to exempt property taxes.
Moreover, narrowly interpreting "within constitutional limitations" to mean that
code cities enjoy only the power to assess and collect taxes conflicts with Tekoa. Tekoa's
general proposition was that taxes need not be strictly uniform, and that exemptions are
constitutional if enacted to avoid unjust or inequitable results. By narrowly reading RCW
35.30.020, the majority reduces a city's authority to assessing and collecting property
2 RCW 35A.11.020.
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Madsen, J., dissenting
taxes, and strict uniformity becomes inevitable. But in order to assess and eolleet taxes
with "reasonable uniformity," as Tekoa recognized, the power to exempt certain classes
of individuals from property taxes consistent with the general welfare ofthe people and
to avoid injustice is inherent. The majority appears to believe that a municipality has the
power to provide exemptions to all types of taxes except for property taxes.
I disagree with the majority, and would hold that the City has the constitutional
and statutory right to exempt certain classes of individuals from property taxes.
Finally, I would hold that a writ of mandamus was an appropriate remedy in this
case, and I would reinstate the trial court's writ. A writ of mandamus is appropriate if
three elements are met:
(1)the party subject to the writ is under a clear duty to act,(2)the applicant
has no "plain, speedy and adequate remedy in the ordinary course oflaw,"
and (3)the applicant is "beneficially interested."
Eugster v. City ofSpokane, 118 Wn. App. 383, 402, 76 P.3d 741 (2003)(citations
omitted)(quoting RCW 7.16.170). The trial court found that the City established each
element. See Clerk's Papers at 481.
First, the party subject to the writ must have a "clear duty to act." Eugster, 118
Wn. App at 402. Specifically, this element requires a ministerial duty—a duty that vests
no independent discretion or judgment in the party subject to the writ. SEIUHealthcare
775NWV. Gregoire, 168 Wn.2d 593, 599, 229 P.3d 774(2010).
Here, the respondents, Vicki Horton and Rob Chase, are subject to the writ in their
respective capacities as Spokane County assessor and Spokane County treasurer.
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Pursuant to State el rel. Godfrey v. Turner, a county treasurer is a "subordinate
ministerial officer who has no discretion, but must perfonn the duty of collecting taxes as
they are certified to him by the assessment roll placed in his hands for collection." 113
Wash. 214, 219, 193 P. 715 (1920); RCW 36.29.100 ("All special assessments and
special taxation for local improvements assessed on property benefited shall be collected
by the city treasurer."). Moreover,"[t]he action ofthe assessor in setting rates is
primarily ministerial." Hoppe v. King County, 95 Wn.2d 332, 338,622 P.2d 845 (1980).
Consequently, Horton and Chase are under a clear duty to perform their ministerial
functions—^Horton must assess the tax rates, and Chase must collect taxes pursuant to
those assessments. Neither Horton nor Chase may exercise any diseretion or judgment in
the administration of their respective duties.
The second element required for mandamus is that no alternative "'plain, speedy,
and adequate remedy in the ordinary course ofthe law'" exists. Eugster, 118 Wn. App.
at 403 (quoting River Park Square, LLC v. Miggins, 143 Wn.2d 68, 76, 17 P.3d 1178(2001)). In other words, mandamus will not lie if the party requesting the writ has an
alternative and adequate remedy besides mandamus. Gregoire, 168 Wn.2d at 625.
However for a remedy to be considered inadequate "'[tjhere must be something in the
nature of the action or proceeding that makes it apparent to this court that it will not be
able to protect the rights of the litigants or afford them adequate redress, otherwise than
through the exercise of this extraordinary jurisdiction.'" Id.(internal quotation marks
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omitted)(quoting State ex rel. O'Brien v. Police Court, 14 Wn.2d 340, 347-48, 128 P.2d
332(1942)).
Horton and Chase argue that the City did have an adequate alternative remedy—a
declaratory judgment pursuant to chapter 7.24 RCW,the Uniform Declaratory Judgment
Act(UDJA). Under the UDJA,a "declaratory judgment" is an order that establishes the
"rights, status and other legal relations whether or not further relief is or could be
claimed." RCW 7.24.010. In contrast, a "writ of mandamus" is an order compelling
performance of a public official's existing duties. Walker v. Munro, 124 Wn.2d 402, 408,
879 P.2d 920(1994). What Horton and Chase fail to recognize is that an "ordinance will
be presumed to be constitutional, and the burden ofshowing otherwise rests heavily upon
the challenger." Homes Unlimited, Inc. v. City ofSeattle, 90 Wn.2d 154, 158, 579 P.2d
1331 (1978).
Here, the City passed an ordinance exempting certain individuals from a local
property tax. Horton and Chase refused to assess and collect property taxes in accord
with the City's ordinance. Appropriately, the City requested a writ of mandamus from
the trial court in order to compel Horton and Chase to comply with the City's ordinance
and to perform their assessment and collection duties. The City correctly did not request
a declaratory judgment because the City's ordinance is presumed constitutional, and a
declaration of constitutionality is not a prerequisite to obtaining a writ of mandamus. The
City sought a remedy to compel Horton and Chase to comply with their ministerial
duties, not establish the constitutionality of its ordinance. Unlike a writ of mandamus, a
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Madsen, J., dissenting
declaratory judgment does not directly compel perfonnance, which is the remedy sought
by the City.
Additionally, the issue of constitutionality was raised as a defense to the "duty"
element required for a writ of mandamus. Requiring a declaratory judgment every time
the constitutionality of a statute is asserted as a defense would severely restrict parties
from obtaining mandamus in the future. In effect, parties would be required to seek
declaratory judgment regarding constitutionality of underlying issues as a threshold
determination before they may request a writ of mandamus from the court. A declaratory
judgment does not constitute an adequate alternative remedy.
The third element requires that the party requesting mandamus be "beneficially
interested." Here, the City implemented the ordinance that Horton and Chase refuse to
comply with. As such, the City has a beneficial interest in ensuring that public officials,
burdened with the task ofimplementing legislation, do, in fact, implement the City's
legislative acts.
Because I would hold that the City's ordinance is constitutional and that
mandamus is an appropriate remedy,I would affirm the trial court. Accordingly, I
respectfully dissent.
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