Black v. Cent. Puget Sound Reg'l Transit Auth. ( 2020 )

/rrcTEv
X CLERKS OPPICE X
This opinion was
^ filed for record
tlTREMS COURT,STAni OF WASSMTON
ai o^kM on 1"/ y 3.
! DATE_FEBj_3l202fl
Susan L. Carlson
JUStIGS
Supreme Court Clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
TAYLOR BLACK,ANNE BLACK,JERRY
KING,RENE KING,ROGER
STRUTHERS,MARY LOUISE No. 97195-1
STRUTHERS,and FRANK MAIETTO,
individually and on behalf of a class of all En Banc
persons similarly situated.
Filed
FEB 1 3 2020
Appellants,
V.
CENTRAL PUGET SOUND REGIONAL
TRANSIT AUTHORITY and STATE OF
WASHINGTON,
Respondents.
OWENS,J. —In 2015, the legislature enacted ROW 81.104.160(1)(MVET
statute), which authorizes Sound Transit to use two separate depreciation schedules to
calculate motor vehicle excise taxes(MVET). The MVET statute authorizes Sound
Transit to use the former 1996 depreciation schedule for MVETs whose revenue is
pledged to pay off Sound Transit's bond contracts. The MVET statute further
authorizes Sound Transit to use the current 2006 depreciation schedule for all other
Black V. Cent. Puget Sound Reg'l Transit Auth. & State of Washington
No. 97195-1
MVETs. Though each schedule is referenced, the MVET statute does not restate in
full either ofthese schedules. Taylor Black and other taxpayers allege the MVET
statute violates article II, section 37 ofthe Washington Constitution, which states
"[n]o act shall ever be revised or amended by mere reference to its title, but the act
revised or the section amended shall be set forth at full length."
We hold the MVET statute is constitutional for the following reasons:(1)the
statute is a complete act because it is readily ascertainable from its text alone when
which depreciation schedule will apply,(2)the statute properly adopts both schedules
by reference, and (3)the statute does not render a straightforward determination ofthe
scope of rights or duties established by other existing statutes erroneous because it
does not require a reader to conduct research to find unreferenced laws that are
impacted by the MVET statute.
FACTS AND PROCEDURAL fflSTORY
1. Background
In 1992, the legislature authorized "counties in the state's most populous region
to create a local agency for planning and implementing a high capacity transportation
system." ENGROSSED SUBSTITUTE H.B.2610, at 2, 52d Leg., Reg. Sess.(Wash.
1992). The legislature also allowed any authorized regional transit authority to submit
ballot propositions detailing its transportation system plans and proposed financing to
voters living in eligible counties. M at 5, 30. Whenever voters approve of a
proposition, the transit authority may then levy and collect local funding from an
Black V. Cent. Puget Sound Reg'I Transit Auth. & State of Washington
No. 97195-1
MVET. Id. at 47-48. An MVET is "a tax on the privilege of relicensing a motor
vehicle for use on public roadways." Sheehan v. Cent. Puget SoundReg'l Transit
Auth., 155 Wash. 2d 790, 802, 123 P.3d 88(2005). MVETs are calculated based on the
value ofthe vehicle, as set out by statute in a depreciation schedule. Former RCW
82.44.041 (1991).
In 1993, the King, Pierce, and Snohomish county councils voted to create
Sound Transit. In 1996, voters in these counties approved an MVET to fund express
bus services and rail lines through Sound Transit. In 1999, Sound Transit then issued
$350 million in bonds to finance a portion ofthe initial construction ofthese projects.
Pierce County v. State, 159 Wash. 2d 16, 24, 148 P.3d 1002(2006)(hereinafter P/erce
County II). In its bond contracts, Sound Transit pledged revenues from the 1996
MVET toward the payment ofthese bonds. The bonds expire in 2028.
In 2002, voters approved Initiative 776 (1-776), which sought to repeal both the
local MVETs for transit funding and the vehicle depreciation schedule used to
calculate MVETs, as well as to amend Sound Transit's authority to levy and collect
MVETs.
In 2006,the legislature enacted the current depreciation schedule, which results
in a lower motor vehicle valuation than the former depreciation schedule.
Substitute S.B. 6247, at 1, 3, 59th Leg., Reg. Sess.(Wash. 2006). That same year,
we held that 1-776 "impermissibly impair[ed] the contractual obligations between
Sound Transit and [its] bondholders. Thus,1-776 has no legal effect of preventing
Black V. Cent. Puget Sound Reg'l Transit Auth. & State of Washington
No. 97195-1
Sound Transit from continuing to fulfill its contractual obligation to levy the MVET
for so long as the bonds remain outstanding." Pierce County11, 159 Wash. 2d at 51. In
response, the legislature passed Senate Bill 6379, which stated all MVETs must be
calculated using the former depreciation schedule for bond contracts issued before
1-776 was passed. LAWS OF 2010,ch. 161, § 903.
In 2015, the legislature passed the statute in question, RCW 81.104.160(1),
stating that any MVET imposed by a regional transit authority (including Sound
Transit) must use the former depreciation schedule until it pays off its bond contracts
issued before 1-776; after Sound Transit pays off its bond contracts, Sound Transit
must then use the current depreciation schedule. Specifically, the legislature stated
the following:
Notwithstanding any other provision ofthis subsection or chapter 82.44 RCW,
a motor vehicle excise tax imposed by a regional transit authority before or
after July 15, 2015, must comply with chapter 82.44 RCW as it existed on
January 1, 1996, until December 31st ofthe year in which the regional transit
authority repays bond debt to which a motor vehicle excise tax was pledged
before July 15, 2015. Motor vehicle taxes collected by regional transit
authorities after December 31 st ofthe year in which a regional transit authority
repays bond debt to which a motor vehicle excise tax was pledged before
July 15, 2015, must comply with chapter 82.44 RCW as it existed on the date
the tax was approved by voters.
RCW 81.104.160(1)(emphasis added).
2. Procedural History
In 2018, Black, along with a class of licensed motor vehicle owners, filed a
complaint against Sound Transit and the State in Pierce County Superior Court
Black V. Cent. Puget Sound Reg'l Transit Auth. & State of Washington
No. 97195-1
seeking declaratory judgment that the MVET statute violates article II, section 37 of
the Washington Constitution because it does not set forth at full length either the
former or the current depreciation schedule. Furthermore, Black argues the MVET
statute improperly amended the current depreciation schedule without setting forth the
amended provision in full.
Both parties filed a motion for summary judgment. Sound Transit argued that
the MVET statute properly adopts by reference other existing statutes; thus, it is
constitutional. The superior court granted Sound Transit's motion and dismissed
Black's claim with prejudice. Black appealed the superior court's order to Division
Two ofthe Court of Appeals. Sound Transit filed a motion to transfer the appeal to
our court, which we granted.
Shortly before oral argument on September 10, 2019, the State filed a notice
indicating the State's response brief and responses to amici contained an inaccurate
factual statement. Specifically, the State notified us that the depreciation schedule
Sound Transit has been applying is found in Referendum 49, chapter 321, Laws of
1998—^not the depreciation schedule that existed on January 1, 1996, as reflected by
the MVET statute. However, because Sound Transit's actions do not have any
bearing on the constitutionality ofthe MVET statute itself, this notice does not impact
our holding.
Black V. Cent. Puget Sound Reg'I Transit Auth. & State of Washington
No. 97195-1
ISSUE
Is RCW 81.104.160(1) constitutional if it does not set forth at full length either
the former 1996 depreciation schedule or the current 2006 depreciation schedule but
references both?
ANALYSIS
We review a trial court's decision granting summary judgment de novo. Pierce
County II, 159 Wash. 2d at 27. Summary judgment is properly granted where there are
no genuine issues of material fact and the moving party is entitled to judgment as a
matter of law. Id.
We also review constitutional questions and statutory interpretation de novo.
Pierce County v. State, 150 Wash. 2d 422, 429,78 P.3d 640(2003){Pierce County I).
'"A party challenging a statute's constitutionality bears the heavy burden of
establishing its unconstitutionality.'" Pierce County II, 159 Wash. 2d at 27(quoting
Larson v. Seattle Popular Monorail Auth., 156 Wash. 2d 752, 757, 131 P.3d 892
(2006)).
Article II, section 37 ofthe Washington Constitution provides that "[n]o act
shall ever be revised or amended by mere reference to its title, but the act revised or
the section amended shall be set forth at full length." Article II, section 37 was
drafted to protect the legislature and the public against fraud and deception. Citizens
for Responsible Wildlife Mgmt. v. State, 149 Wash. 2d 622,640, 71 P.3d 644(2003)
(hereinafter CRWM). Relatedly,"a significant purpose of article II, section 37 is to
Black V. Cent. Puget Sound Reg'I Transit Auth. & State of Washington
No. 97195-1
ensure that those enacting an amendatory law are fully aware ofthe proposed law's
impact on existing law." Wash. Citizens Action of Wash. v. State, 162 Wash. 2d 142,
152, 171 P.3d486 (2007).
To determine whether a statute violates article II, section 37, the first question
we must answer is whether the statute is a'"complete act,'" such that the rights or
duties under the statute can be understood without referring to another statute;
complete acts that adopt other statutes by reference satisfy this question under article
II, section 37. El Centro de la Raza v. State, 192 Wash. 2d 103, 129,428 P.3d 1143
(2018)(plurality opinion)(quoting State v. Manussier, 129 Wash. 2d 652,663, 921 P.2d
473 (1996)).'
The second question we answer is whether'"a straightforward determination of
the scope of rights or duties under the existing statutes [would] be rendered erroneous
by the new enactment.'" Id. (alteration in original)(internal quotation marks omitted)
(quoting Manussier, 129 Wash. 2d at 663).
We address each question in turn. Additionally, the parties dispute in their
briefs whether the second part ofthe test is necessary if we conclude a statute is a
complete act. We take this opportunity to clarify that both parts ofthe test are
necessary under our article II, section 37 analysis based on our holding in El Centro
de la Raza.
'Justice Wiggins' dissenting opinion joined the plurality on this point. 192 Wash. 2d at 142
(Wiggins, J., dissenting).
7
Black V. Cent. Puget Sound Reg 7 Transit Auth. & State of Washington
No. 97195-1
1. The MVET Statute Is a Complete Act
A. A Statute Is a Complete Act When It Is Readily Ascertainablefrom the
Words ofthe Statute Alone, and It Satisfies Article II, Section 37 When It
Adopts Another Statute by Reference
If the rights under a statute are '"readily ascertainable from the words of the
statute alone,'" then it is a complete act. Id. (quoting CRWM,149 Wn.2d at 642).
The purpose of this part ofthe test is "to make sure the effect ofnew legislation is
clear and to 'avoid[] confusion, ambiguity, and uncertainty in the statutory law
through the existence of separate and disconnected legislative provisions, original and
amendatory, scattered through different volumes or different portions ofthe same
volume.'" Id. (alteration in original)(internal quotation marks omitted)(quoting
Amalg. Transit Union Local 587 v. State, 142 Wash. 2d 183, 245, 11 P.3d 762,27 P.3d
608 (2000)). Furthermore,'"[n]early every legislative act of a general nature changes
or modifies some existing statute, either directly or by implication,' but this, alone,
does not inexorably violate the purposes of section 37." CRWM, 149 Wash. 2d at 640
(quoting i7o/zma« v. City ofSpokane, 91 Wash.418,426, 157 P. 1086 (1916)).
We identified a complete act in El Centro de la Raza. There, the statute at
issue stated it applied to all charter schools established under chapter 28A.710 RCW,
and it further stated all bargaining units at charter schools "'must be limited to
employees working in the charter school and must be separate from other bargaining
units in schools districts, educational service districts, or institutions of higher
education.'" El Centro de la Raza, 192 Wash. 2d at 128 (quoting RCW 41.59.031;
Black V. Cent. Puget Sound Reg 7 Transit Auth. & State of Washington
No. 97195-1
RCW 41.56.0251). We held this was a complete act even if the statute defined
"bargaining units for charter school employees differently than for other public school
employees" because the rights under the statute were readily ascertainable from its
text alone. Id. at 129.
Similarly, rights laid out in the MVET statute are readily ascertainable from its
text alone. The MVET statute specifically states in which circumstance each
depreciation schedule will apply. It does not matter if the legislature set forth two
depreciation schedules for different circumstances and made the current depreciation
schedule inapplicable for a period oftime because it remains clear to the reader when
each depreciation schedule will apply, and that is what article II, section 37 requires.
Because the legislature clearly laid out when each schedule will apply, there is no
confusion or ambiguity arising from the text ofthe statute itself. Therefore, the
MVET statute is a complete act.
Additionally,"[cjomplete acts which ... adopt by reference provisions of prior
acts . .. or . . . incidentally or impliedly amend prior acts are excepted from section
37." CRWM,149 Wn.2d at 642(citing Naccarato v. Sullivan, 46 Wn.2d 67,75,278
P.2d 641 (1955)). '"Statutes which refer to other statutes and make them applicable to
the subject ofthe legislation are called reference statutes.'" State v. Rasmussen, 14
Wn.2d 397,402, 128 P.2d 318 (1942)(internal quotation marks omitted)(quoting 25
Ruling Case Law Statutes § 160, at 907(1919)). "Reference statutes are offrequent
Black V. Cent. Puget Sound Reg'I Transit Auth. & State of Washington
No. 97195-1
use to avoid encumbering the statute books by unnecessary repetition, and they have
frequently been recognized as an approved method of legislation." Id.
The MVET statute properly adopts both depreciation schedules by reference.
In Gruen v. State Tax Commission, the legislature enacted a reference statute to create
a fund for the retirement of veterans' compensation bonds. 35 Wash. 2d 1, 6, 24, 25, 211
P.2d 651 (1949), overruled on other grounds by State ex rel. Wash. State Fin. Comm.
V. Martin, 62 Wash. 2d 645, 384 P.2d 833 (1963). In Cruen, section 9 ofthe statute
stated that all cigarette excise taxes "imposed by Title XII" shall be paid into the fund.
Id. at 6. We held this was a proper reference statute under article II, section 37
because "it is a statute which refers to, and adopts by reference, the pre-existing
statutes [i.e.. Title XII], and makes them applicable to this legislation." Id. at 25. We
did not require the legislature to set out Title XII in full.
Black argues the MVET statute is not a reference statute because it does not
adopt or incorporate the current depreciation schedule but rather makes it inapplicable
for a period oftime. Black is incorrect. Like the statute in Cruen, which adopted by
reference Title XII, the MVET statute adopts by reference both depreciation
schedules. The MVET statute first indicates that the former depreciation schedule
will be used with respect to Sound Transit's bond contracts, and then it indicates that
the current depreciation schedule will be used for all other circumstances. The fact
that the MVET statute makes one schedule inapplicable for a period oftime has no
effect on the statute's constitutionality because the statute still complies with one of
10
Black V. Cent. Puget Sound Reg'l Transit Auth & State of Washington
No. 97195-1
the primary purposes of article II, section 37—"ensur[ing]that those enacting an
amendatory law are fully aware ofthe proposed law's impact on existing law." Wash.
Citizens Action of Wash, 162 Wash. 2d at 152. Therefore, the MVET statute is a
complete act that properly adopts both schedules by reference.
B. The MVET Statute Does Not Reference a Repealed Statute Because the
Former Depreciation Schedule Was Not Repealed with Respect to Sound
Transit's Bond Contracts
Black argues that the legislature cannot revive a repealed statute by referencing
it. Black's argument is unavailing because the MVET statute does not revive a
repealed statute. While the former depreciation schedule is repealed with respect to
MYETs that have been imposed after 1-776 was passed, we held in Pierce County II
that 1-776 had no effect on Sound Transit's bond contracts before December 5, 2002,
and it did not prevent Sound Transit "from continuing to fulfill its contractual
obligation to levy the MVET for so long as the bonds remain outstanding." 159
Wash. 2d at 51. Though 1-776 sought to repeal the former depreciation schedule in its
entirety, our decision in Pierce County II authorizes Sound Transit to continue to use
this schedule for MYETs whose revenue is pledged to pay off its bond contracts. Id.
Therefore, the former depreciation schedule is still in effect with respect to Sound
Transit's bond contracts, and the MYET statute is not reviving a repealed statute.
11
Black V. Cent. Puget Sound Reg'l Transit Auth. & State of Washington
No. 97195-1
C. Black's Remaining Arguments That the MVET Statute Does Not Adopt
Other Statutes by Reference Are Incorrect
Black argues,"To identify which schedule governs the MVET on a given
date[,] one must look not only to the text ofthe Act[] but also to the continued
existence of[Sound Transit's] earlier issued bonds." Reply Br. of Appellants at 16.
Black's argument is unavailing. In effect, Black argues the only way the legislature
may comply with article II, section 37's "set[ting] forth at full length" requirement is
to list out every bond Sound Transit issued before 1-776 was passed to ensure voters
know which bonds refer to which MVETs. However, to require the legislature to
fully list out this information would contradict the purpose of permitting reference
statutes, which is to "avoid encumbering the statute books by unnecessary repetition."
Rasmussen, 14 Wash. 2d at 402.
Black also argues that reference statutes may only refer to existing law and
cannot refer to external sources (i.e., Sound Transit's bond contracts). But we have
never held that referencing external sources in a statute is unconstitutional. Article II,
section 37 is intended to protect the legislature and the public against fraud and
deception. CRWM,149 Wn.2d at 640. By referencing external sources, the
legislature is avoiding fraud and deception—it is informing readers ofthe statute what
external sources apply to the statute and their overall effect. To bar reference to
external sources in statutes would unnecessarily restrict and burden the legislature's
role in drafting statutes.
12
Black V. Cent. Puget Sound Reg'I Transit Auth. & State of Washington
No. 97195-1
2. The MVET Statute Does Not Render the Scope ofRights or Duties Created by
Any Other Existing Statutes Erroneous
A. We Employ a Two-Part Test To Determine Compliance with Article II,
Section 37 Even Ifthe Statute Is a Complete Act
Sound Transit argued in its briefing that if a statute is a complete act, then
courts need not consider the second prong ofthe article II, section 37 test. Sound
Transit is incorrect. We stated in El Centro de la Raza that we use a "two-part test to
evaluate an article II, section 37 challenge" because nearly every statute modifies
some other existing statute, but that does not mean the legislation is unconstitutional.
192 Wash. 2d at 128 (citing CRWM, 149 Wash. 2d at 640). In other words, a complete act,
especially an act that adopts other statutes by reference, may still violate article II,
section 37 because a complete act can still render existing statutes erroneous by not
informing readers how the statute is impacting or modifying a straightforward
determination ofthe scope of rights and duties created by those other statutes.
Therefore, we reiterate that when considering whether a statute violates article II,
section 37, courts must consider both whether the statute is a complete act and
whether it renders erroneous a straightforward determination ofthe scope of rights
and duties created by other existing statutes.
B. The MVET Statute Does Not Require Research into Unreferenced Statutes
Article II, section 37 is intended so "'[c]itizens or legislatures must not be
required to search out amended statutes to know the law on the subject treated in a
new statute.'" Id. at 131 (alteration in original)(internal quotation marks omitted)
13
Black V. Cent. Puget Sound Reg'I Transit Auth. & State of Washington
No. 97195-1
(quoting Wash. Citizens Action of Wash., 162 Wash. 2d at 152). InEl Centra de laRaza,
we reviewed two different statutes that impacted charter school employees' collective
bargaining rights. Id. at 129-30. One ofthese statutes stated collective bargaining
rights were granted "to 'any county or municipal corporation, or any political
subdivision ofthe state of Washington,' except those covered by other collective
bargaining laws." Id. at 130 (quoting ROW 41.56.020). We held this statute violated
article II, section 37 because "it require[d] a thorough search of existing laws in order
to understand the Act's effect on other provisions of chapter 41.56 RCW" since it did
not list out which collective bargaining laws were affected. Id. at 131-32.
In contrast, the MVET statute is clear in its effect—if a specific MVET is
pledged to Sound Transit's bond contracts that were made before 1-776 was passed,
then the former 1996 depreciation schedule will be used; if a specific MVET is not
pledged to Sound Transit's bond contracts, then the current 2006 depreciation
schedule will be used. Unlike the statute in El Centra de la Raza,the MVET statute
lists out which statutes apply at which time, and no reader is required to conduct a
"thorough search of existing laws" that are unreferenced to understand the statute's
effect. Therefore, the MVET statute does not render a straightforward determination
ofthe scope of rights and duties created by any other existing statutes erroneous and
thus does not violate article II, section 37.
14
Black V. Cent. Puget Sound Reg'l Transit Auth. & State of Washington
No. 97195-1
C. The MVETStatute's "Notwithstanding" Language Reflects the Impact the
Statute Has on Existing Laws
We reach the same conclusion on the MVET statute's constitutionality when
we consider the "notwithstanding" language used in the MVET statute. As previously
stated, one ofthe purposes of article II, section 37 is to disclose the effect ofthe new
legislation and its impact on existing laws. Wash. Citizens Action of Wash., 162
Wash. 2d at 152, In State v. Thorne, we reviewed an initiative that stated a persistent
offender shall be sentenced to life imprisonment without the possibility of parole
''notwithstanding the maximum sentence under any other law." 129 Wash. 2d 736, 746,
921 P.2d 514(1996)(emphasis added)(quoting former RCW 9.94A.120(4)(1994),
recodified as RCW 9.94A.505 by LAWS OF 2001, ch. 10, § 6), abrogated in part on
other grounds by In re Pers. Restraint ofEastmond, 173 Wash. 2d 632, 272 P.3d 188
(2012). We held this language made the effect ofthe initiative "obvious" and
provided the initiative's impact on existing laws. Id. at 756.
The MVET statute uses the same language, indicating the former depreciation
schedule will be used for Sound Transit's bond contracts "notwithstanding" the
current RCW chapter that includes the current depreciation schedule. Therefore, the
MVET statute's effect on other statutes is clear, and it does not render a
straightforward determination ofthe scope of rights or duties under any other existing
statutes erroneous.
15
Black V. Cent. Puget Sound Reg'I Transit Auth. & State of Washington
No. 97195-1
D. Black's Interpretations ofOur Previous Holdings Are Incorrect
Black argues that we have struck down statutes similar to the MVET statute
under an article II, section 37 analysis. However, Black misinterprets our holdings
firom these cases. First, in Washington Education Ass'n v. State, we struck down a
budget proviso that limited school districts' ability to grant salary increases greater
than a specific amount because an amended statute "was not fully set forth in the ...
act which purported to amend it." 93 Wash. 2d 37,41, 604 P.2d 950(1980). We struck
down the proviso because "[i]n order to understand the effect ofthe limitation, one
must refer to" other provisions that were not listed anywhere in the act. Id. at 40-41.
In contrast, the MVET statute references both depreciation schedules and their
respective statutes and clearly states which schedule will apply to which MVET. It
does not require the reader to search unreferenced statutes to discover the full effect of
the statute.
Second, Black argues the MVET statute is similar to the statute we struck down
in Flanders v. Morris, 88 Wash. 2d 183, 558 P.2d 769(1977). In Flanders, we held a
legislative appropriations bill violated article II, section 37 because "[o]ne seeking the
law on the subject would have to know one must look under an 'appropriations' title
in the uncodified session laws to find the amendment," but the statute never cited to
these session laws. Id. at 189(emphasis omitted). Black argues the MVET statute is
similar to the statute struck down in Flanders because both statutes included a
provision that restricted the use of another statute for a temporary amount oftime.
16
Black V. Cent. Puget Sound Reg'l Transit Auth. & State of Washington
No. 97195-1
However,that is not why we found the statute in Flanders unconstitutional; to the
contrary, we concluded that a restriction, while temporary, is still a statutory
amendment and thus subject to article II, section 37 analysis. Id. Unlike the statute in
Flanders, the MVET statute provides all the necessary information readers must know
to understand their rights affected by the MVET statute.
Finally, Black argues that the MVET statute is different from the statute we
upheld m Retired Public Employees Council of Washington v. Charles, 148 Wn.2d
602,62 P.3d 470(2003). Specifically, Black argues the MVET statute "suspends the
operation of an existing statute on an ongoing basis, for a stretch oftime determined"
at Sound Transit's discretion, unlike the statute in Charles. Br. of Appellants at 43.
However,the legislature is not restricted from enacting a statute that temporarily
suspends another existing statute. See Thorne, 129 Wash. 2d at 746. Additionally, the
suspension ofthe current depreciation schedule is not fully at Sound Transit's
discretion because Sound Transit's bonds will expire in 2028.
3. Black's Additional Claims Are Unavailing
Black argues article II, section 37 does not inquire into legislators' actual
knowledge. Senators Michael Padden and Steve O'Ban, as amici, similarly argue
inquiring into legislators' understanding of a statute's effect is unconstitutional.
Given that we resolve this case without considering what individual legislators knew,
we do not reach this issue. And finally, the parties dispute whether the MVET statute
is a complete act because it merely incidentally or impliedly amends prior statutes.
17
Black V. Cent. Puget Sound Reg'l Transit Auth. & State of Washington
No. 97195-1
See Weyerhaeuser Co. v. King County, 91 Wn.2d 721,738,592 P.2d 1108(1979)
(quoting Naccarato,46 Wn.2d at 75). Because we hold the MVET statute does not
violate article II, section 37 because it falls within a different exception, we do not
address this argument.
CONCLUSION
We hold RCW 81.104.160(1) is constitutional under article II, section 37. It is
readily ascertainable from the words ofthe statute alone when which depreciation
schedule will apply, and the statute properly adopts both schedules by reference.
Furthermore, the MVET statute does not render any other existing statutes erroneous
because it does not require any reader to conduct research for unreferenced statutes to
understand the rights impacted by the MVET statute itself. Accordingly, we affirm
the Superior Court's judgment.
18
Black V. Cent. Puget Sound Reg'l Transit Auth. & State of Washington
No. 97195-1
WE CONCUR:
r -
QPf-
19
Black V. Cent. Puget Sound Reg'I Transit Auth. et al.,^o. 97195-1
(Gordon McCloud, J., dissenting)
No. 97195-1
GORDON McCLOUD,J.(dissenting)—"No act shall ever be revised or
amended by mere reference to its title, but the act revised or the section amended
shall be set forth at full length." Wash. Const, art. II, § 37. This provision is
designed to "avoid confusion, ambiguity and uncertainty in the law." Amalg.
Transit Union Local 587 v. State, 142 Wash. 2d 183, 192, 11 P.3d 762, 27 P.3d 608
(2000).
The local motor vehicle excise tax(MVET)statute before us purports to
reenact an entire ROW chapter—"chapter 82.44 ROW"—"as it existed on January
1, 1996." ROW 81.104.160. But that MVET statute does not "reference" any
specific statute within that prior "chapter 82.44 RCW" and certainly does not "set
forth" the unreferenced 1996 depreciation schedule "at full length." Further, that
MVET statute fails to mention that incorporating 1996's "chapter 82.44 RCW"
into current law completely "revise[s] or amend[s]" the depreciation schedule
contained in current RCW 82.44.035. Finally, because that MVET statute
incorporates by reference not just the depreciation schedule that the parties and the
Black V. Cent. PugetSoundReg'l Transit Auth. etal.,'Ho. 97195-1
(Gordon McCloud, J., dissenting)
majority focus on but an entire chapter of the 1996 code—along with that chapter's
sometimes outdated 1996 cross-references—^the MVET statute ends up
incorporating material that is inconsistent with laws on the books today.
These three problems—incorporating an old depreciation schedule without
mentioning it; overriding an otherwise current depreciation schedule without
mentioning it, much less setting it forth "at full length"; and incorporating by
reference an entire chapter along with its 24-year-old, sometimes outdated, cross-
references—are severe and pervasive. They render the MVET statute
unconstitutional in violation of article II, section 37's explicit requirements. They
also completely undermine its goals of"avoiding confusion, ambiguity, and
uncertainty in the law."
I therefore respectfully dissent.
I. FACTUAL Background
The majority accurately outlines the history of motor vehicle excise taxing
authority in Washington since 1992. Majority at 2-4. But it omits an account of
the parallel development and amendment of the depreciation schedule for
calculation of motor vehicle excise tax. A brief summary follows.
Prior to 1990, Washington calculated motor vehicle excise tax due based on
the "fair market value" ofthe vehicle taxed. Laws of 1988, ch. 191, § 1(1). In
Black V. Cent. Puget SoundReg'l Transit Auth. e^a/.,No. 97195-1
(Gordon McCloud, J., dissenting)
1990, the legislature replaced the "fair market value" language with instructions
and charts designed to more accurately calculate the value of a taxed vehicle based
on its age. Laws of 1990, ch. 42, § 303. This 1990 "depreciation schedule" was
codified at RCW 82.44.041. Id.- former RCW 82.44.041 (1992).
That 1990 schedule remained in effect until 1998, when the legislature
amended it. The 1998 amendment reduced the taxable value of certain vehicles.
Laws of 1998, ch. 321, § 4.
Thus, when Sound Transit approved its 1996 motor vehicle excise tax, the
1990 depreciation schedule was still in effect. But when Sound Transit issued its
bonds in 1999, the new, reduced 1998 schedule controlled.
Then, in 1999, the voters passed Initiative 695 (1-695). Laws of 2000, ch. 1,
§ 3. That 1999 initiative purported to repeal all motor vehicle excise tax, including
the 1998 depreciation schedule. Id. But this court declared 1-695 unconstitutional
"in its entirety" the following year. Amalg. Transit, 142 Wash. 2d at 257.
After the superior court declared 1-695 unconstitutional(and before this
court spoke), the legislature independently enacted some of1-695's provisions.^
'This court ruled that 1-695 contained structural and procedural constitutional
problems. See Amalg. Transit, 142 Wash. 2d at 256-57 (listing the violations). The
legislature's repeal of statewide motor vehicle excise tax did not eontain the same
problems.
3
BlackV. Cent. PugetSoundReg'l Transit Auth. etal.,'Ho. 97195-1
(Gordon McCloud, J., dissenting)
Laws of 2000, 1st Spec. Sess., ch. 1. One of those provisions was a repeal of
statewide motor vehicle excise tax. Id. § 2. Local entities, such as Sound Transit
or municipalities, retained authority to collect motor vehicle excise tax under
certain conditions. See, e.g., Laws of 1998, ch. 321, §§ 25(1),(4), 35.
In 2002,the voters passed Initiative 776 (1-776), repealing "[a]ny motor
vehicle excise tax previously imposed," as well as many other related statutes.
Laws of 2003,ch. 1, §§ 4-6. One of the statutes repealed was the 1998
depreciation schedule (again). Id. § 5(6)(repealing former ROW 82.44.041).
In 2006, however, we declared a piece of1-776 unconstitutional: we held
that section 6 of1-776 had "impermissibly impair[ed] the contractual obligations
between Sound Transit and the bondholders" and declared that section
unconstitutional as applied to Sound Transit. Pierce County v. State, 159 Wash. 2d
16, 51, 148P.3d 1002(2006).^
^ The parties dispute whether Pierce County invalided I-776's attempted repeal of
the 1998 depreciation schedule, former RCW 82.44.041. Br. of Appellants at 27; Br. of
Resp't Sound Transit at 25-26; Reply Br. of Appellants at 13-14. This is a complicated
question. The majority agrees with Sound Transit that we deemed 1-776's purported
repeal ofthe 1998 depreciation schedule unconstitutional, thus leaving that schedule on
the books. Majority at 11-12 (citing P/erce County, 159 Wash. 2d at 51).
But the majority misses a critical point about what Pierce County said. Pierce
County acknowledged that it was only section 6 of1-776 that repealed "[a]ny motor
vehicle excise tax previously imposed." Laws OF 2003, ch. 1, § 6. Sound Transit had
issued $350 million in bonds in reliance on revenue from that "motor vehicle excise tax
Black V. Cent. Puget SoundReg'l Transit Auth. etal.,^o. 97195-1
(Gordon McCloud, J., dissenting)
But during that same year—2006—and just before the ruling in Pierce
County, the legislature passed a new local motor vehicle excise tax bill, complete
with a new depreciation schedule.^ Laws of 2006, ch. 318, § 1. Because 1-776
previously imposed." We therefore held that section 6 unconstitutionally impaired Sound
Transit's contract with its bondholders. Pierce County, 159 Wash. 2d at 51. Throughout
our opinion, we referred specifically to "section 6" of1-776 as the problem. Id. at 33, 39,
51 (repeatedly referring to "section 6"). We held that "section 6 impermissibly
impair[ed] the contractual obligations between Sound Transit and the bondholders. Thus,
1-776 has no legal effect of preventing Sound Transit from continuing to fulfill its
contractual obligation to levy the MVET for so long as the bonds remain outstanding."
Id. at 51.
But section 6 did not repeal the old depreciation schedule. Section 5 did that. And
Pierce County does not mention section 5 of1-776 once in its opinion. Thus, the
challengers plausibly argue that I-776's repeal of section 5 was actually effective.
To be sure. Pierce County arguably invalidated all the sections of1-776 to the
extent they interfered with Sound Transit's contract with its bondholders. But did repeal
of a general depreciation schedule do that? Some statements from Pierce County suggest
that the answer is yes. 159 Wash. 2d at 34-35 ("[T]he Sound Transit bonds did not reserve
the right to reduce the MVET pledged to bondholders in any amount."). Some suggest
that the answer is no. Id. at 30("[T]he contract protected by the constitution includes the
terms ofthe bonds, their authorizing resolutions ...,the official statement, and chapters
81.112 and 81.104 RCW,governing Sound Transit."); see also Tyrpak v. Daniels, 124
Wash. 2d 146, 153, 874 P.2d 1374(1994)("A mere change in the value or rating ofthe
outstanding bonds, by itself, is not enough to prove an impairment of contract.").
Whatever the correct interpretation ofPierce County, the 1996 schedule was no
longer good law by the time 1-776 purported to repeal it. The legislature had already
amended that 1996 schedule in 1998. When the legislature passed the MVET statute in
2015, the status of the 1996 schedule was far from clear.
^ The legislature may amend or repeal laws passed by initiative two years after
they are enacted. WASH. CONST, art. II, § 1(c).
Black V. Cent. Puget SoundReg'l Transit Auth. e?a/.,No. 97195-1
(Gordon McCloud, J., dissenting)
had repealed the old schedule, the legislature created a new statutory section, RCW
82.44.035, for its new schedule, rather than amending the repealed schedule.
Laws of 2006, ch. 318, § 1; RCW 82.44.035. Notably, according to a Sound
Transit financial executive, no entity has ever used 2006's RCW 82.44.035 to
calculate motor vehicle excise tax. Clerk's Papers(CP)at 406.
In 2010, the legislature made explicit that for motor vehicle excise tax
"pledged to repay a bonded debt issued before December 5, 2002,... the motor
vehicle excise tax must comply with chapter 82.44 RCW as it existed on January 1,
1996." LAWSOF2010, ch. 161, § 903.
Then, in 2015, the legislature passed the new MVET statute in front of us
today. That 2015 law empowered regional transit authorities, such as Sound
Transit, to collect motor vehicle excise tax. It also added the challenged
incorporation-by-reference language to RCW 81.104.160:
Notwithstanding any other provision ofthis subsection or chapter 82.44
RCW,a motor vehicle excise tax imposed by a regional transit authority
before or after July 15, 2015, must comply with chapter 82.44 RCW as
it existed on January 1, 1996, until December 31st ofthe year in which
the regional transit authority repays bond debt to which a motor vehicle
excise tax was pledged before July 15, 2015. Motor vehicle taxes
collected by regional transit authorities after December 31 st ofthe year
in which a regional transit authority repays bond debt to which a motor
vehicle excise tax was pledged before July 15, 2015, must comply with
chapter 82.44 RCW as it existed on the date the tax was approved by
voters.
Black V. Cent. Puget SoundReg'l Transit Auth. 97195-1
(Gordon McCloud, J., dissenting)
Laws of 2015, 3d Spec. Sess., oh. 44, § 319(1)(emphasis added).
This history of motor vehicle excise tax in Washington is not easy to follow.
The statutes have been amended, repealed, and reenacted by both the legislature
and the people, and we have invalidated portions of those enactments and repeals
as unconstitutional. The legislature's latest attempt in 2015 to revitalize an entire
RCW chapter as it existed in 1996, without "set[ting] forth" any specific statute
and without mentioning whether it intended to affect just the 1996 depreciation
schedule or all of 1996's "chapter 82.44 RCW," further confuses things. That
2015 statute's apparent attempt to partially invalidate the depreciation schedule
currently on the books without "set[ting it] forth" at all, much less setting it forth
"at full length," makes things even worse. In my opinion, it makes things so bad
that it violates article II, section 37.
II. Analysis
Article II, section 37 of our state constitution provides a two-step framework
for evaluating a statute's validity. The first question we ask in an article II, section
37 challenge is whether the statute at issue constitutes a "complete act." El Centra
de la Raza v. State, 192 Wash. 2d 103, 129, 428 P.3d 1143(2018)(plurality opinion).
This requirement "make[s] sure [that] the effect of new legislation is clear" and
7
Blackv. Cent. PugetSoundReg'l Transit Auth. e?fl/.,No. 97195-1
(Gordon McCloud, J., dissenting)
"'avoid[s] confusion, ambiguity, and uncertainty in the statutory law through the
existence of separate and disconnected legislative provisions, original and
amendatory, scattered through different volumes or different portions of the same
volume.'" Id. (internal quotation marks omitted)(quotingyfma/g. Transit, 142
Wash. 2d at 245). Ifthe act is incomplete, it violates article II, section 37. Amalg.
Transit, 142 Wash. 2d at 256.
But even if the act is complete,"[a]nother purpose of the constitutional
limitation is to apprise those who are affected by an existing law of any important
changes." Wash. Educ. Ass'n v. State, 93 Wash. 2d 37, 41, 604 P.2d 950(1980)
{Wash. Educ. Ass'n I). Thus, the next question we ask is "whether '"a
straightforward determination of the scope of rights or duties under the existing
statutes [would] be rendered erroneous by the new enactment.'" El Centra, 192
Wash. 2d at 129 (alteration in original)(quoting State v. Manussier, 129 Wash. 2d 652,
663, 921 P.2d 473 (1996)(quoting Wash. Educ. Ass'n v. State, 97 Wash. 2d 899, 903,
652 P.2d 1347(1982){Wash. Educ. Ass'n II))). If an enactment "requires a
thorough search of existing laws in order to understand [its] effect on other
provisions," then it also violates article II, section 37. Id. at 131-32.
The language challenged here flunks both tests.
Black V. Cent. Puget SoundReg'l Transit Auth. e?a/.,No. 97195-1
(Gordon McCloud, J., dissenting)
A. The MVETStatute Is Not a Complete Act
The MVET statute is not a complete act. It purports to adopt a 1996 version
of a full RCW chapter whose constituent statutes have since been modified (in big
and small ways) by ballot initiatives, session laws, and opinions from this court,
without mentioning which portions of old chapter 82.44 RCW really survive. The
motor vehicle excise tax scheme has become so confusing that the Department of
Licensing(DOT)itself has been applying the wrong depreciation schedule "for
some time"—an error the State acknowledged on the day of oral argument before
this court. Notice [offactual concession]. Black v. Cent. Puget Sound Reg'l
Transit Auth, No. 97195-1 (Wash. Sept. 10, 2019). The MVET statute's
overgeneral cross-reference to a full 1996 chapter—combined with its silence
about its impact on the 1996 depreciation schedule, its impact on the other portions
of that large chapter, its impact on the nested cross-references within that chapter,
or its impact on the current depreciation schedule—all make RCW 81.104.160
woefully incomplete.
1. The MVET Statute Is Not a Complete Act Because Its
Effects—Especially Its Effects on RCW 82.44.041—Are Not
Clear
RCW 81.104.160 is hard to decipher. It directs Sound Transit to "comply
with chapter 82.44 RCW as it existed on January 1, 1996" until Sound Transit
Blackv. Cent. PugetSoundReg'l TransitAuth. etal,^o. 97195-1
(Gordon McCloud, J., dissenting)
repays its bond debt. But it completely fails to state the subject matter of the 1996
legislation that this cross-reference intends to revitalize. To identify the law's
impact on depreciation schedules, for example, the reader must locate an archived
1996 edition ofthe RCW.'^ The reader must then compare and contrast the full
1996 chapter 82.44 RCW with the current chapter 82.44 RCW. The reader may
then find that among many other statutes, 1996's chapter 82.44 RCW contained a
depreciation schedule and, when comparing that depreciation schedule to current
law, vehicle values depreciated more slowly under 1996's RCW 82.44.041 than
under the current RCW 82.44.035.
But that's not what RCW 81.104.160 says. Instead, it says that Sound
Transit must comply with all of"chapter 82.44 RCW" as it existed in 1996 until it
repays its bond debt. And the MVET statute does not limit its cross-reference to
reanimating the 1996 depreciation schedule. It reanimates the rest of that chapter,
too. That introduces more confusion because the 1996 chapter 82.44 RCW differs
in many respects from current chapter 82.44 RCW.
Conveniently, the legislature provides public access to such an archive on its
website. See http://leg.wa.gov/CodeReviser/RCWArchive/Pages/default.aspx.
Inconveniently, this resource "contain[s] all laws of a general and permanent nature
through the 1996 regular session, which adjoumed sine die March 7, 1996."
http://leg.wa.gOv/CodeReviser/RCWArchive/Documents/1996/Vol0.pdf at i. So it does
not quite reveal the precise state ofthe law "as it existed on January 1, 1996."
10
Black V. Cent. Puget SoundReg'l Transit Auth. et al.,^o. 97195-1
(Gordon McCloud, J., dissenting)
The first difference between 1996's chapter 82.44 RCW and today's chapter
82.44 RCW is stark. Current chapter 82.44 RCW implements and regulates motor
vehicle excise tax imposed by localities pursuant to authority delegated by other
statutes (such as RCW 81.104.160). The 1996 law, in contrast, imposed statewide
motor vehicle excise tax. Former RCW 82.44.020 (1996), Laws of 1993, Spec.
Sess., ch. 23, § 61. Many of the 1996 version's other provisions concern details
about collecting that statewide tax, disposing of statewide tax revenue, and
exemptions from statewide motor vehicle excise tax. See, e.g., former RCW
82.44.041,.110,.025 (1996). The legislature repealed the statewide tax in 2000,
but it left in place many of the implementing details—which were by then cross-
referenced by statutes empowering localities to impose their own MVET. Laws
OF 2000,1st Spec. Sess., ch. 1, § 2(4); former RCW 81.104.160(2000); former
RCW 35.58.273 (2000).
Thus, in 1996, local governments looked to chapter 82.44 RCW to calculate
vehicle value. See former RCW 81.104.160(2000); former RCW 35.58.273
(2000). The other provisions of 1996 chapter 82.44 RCW implemented that
chapter's statewide motor vehicle excise tax scheme, not local motor vehicle
11
Black V. Cent. Puget SoundReg'l Transit Auth. e^fl/.,No. 97195-1
(Gordon McCloud, J., dissenting)
excise tax. Only since 2010, and never before, has Sound Transit been required to
"comply with" unspecified 1996 laws in its motor vehicle excise tax collection.^
In other words, the 1996 and current versions ofthe chapter serve
fundamentally different purposes—current chapter 82.44 ROW implements
taxation imposed by other statutes; 1996's chapter 82.44 ROW imposed taxation
itself. Accordingly, many of the 1996 statutes are incoherent or irrelevant as
applied to Sound Transit today. See, e.g., former RCW 82.44.110,.150,.155,.160
(1996).
The next difference between 1996's chapter 82.44 RCW and today's chapter
82.44 RCW is less stark, but it is still confusing. It concerns how Sound Transit
goes about collecting its tax. Under the current RCW 82.44.135, Sound Transit
"must contract with the[DOL]for the collection of the tax" and the DOT "may
charge a reasonable amount, not to exceed one percent oftax collections, for the
administration and collection of the tax." Sound Transit and the DOL have agreed
to just such an arrangement: a 2018 agreement between the two provides a list of
^ Sound Transit of course had to comply with all applicable provisions ofthe code
in 1996. But not until 2010 did a statute direct it specifically to "comply with" any
portion of chapter 82.44 RCW other than the portion devoted to vehicle value calculation.
12
Black V. Cent. Puget SoundReg'l Transit Auth. etal.,^o. 97195-1
(Gordon McCloud, J., dissenting)
"reimbursable costs . . . associated with the administration and collection of the
tax," citing RCW 82.44.135.^ CP at 370.
But RCW 82.44.135 did not exist in 1996. See generally former chapter
82.44 RCW (1996); Laws of 2006, ch. 318, § 9. Nor did any section of former
chapter 82.44 RCW provide for such a reimbursement arrangement. Rather, the
legislature allowed regional transit authorities to "contract with the state
department of revenue or other appropriate entities for administration and
collection of any tax authorized." Former RCW 81.104.190(1996). This statute
remains on the books largely unchanged. RCW 81.104.190.
So with whom should Sound Transit contract? Under current RCW
82.44.135, it must contract with the DOT. Under current and former^ RCW
^ Under the majority's reading ofPierce County, payment of any motor vehicle
excise tax to the DOT would reduce bondholder security and, hence, would arguably
violate the contract clause. IfPierce County invalidated a new methodology for
calculating vehicle value, surely its holding would also invalidate a new payment of a
percentage to the DOL.
Presumably Sound Transit should use current RCW 81.104.190, as the MVET
statute directs it only to the 1996 version of chapter 82.44 RCW and not chapter 81.104
RCW.
13
Black V. Cent. PugetSoundReg'l Transit Auth. 97195-1
(Gordon McCloud, J., dissenting)
81.104.190, it should contract with the Department of Revenue "or other
appropriate entities."®
Nothing from the 1996 chapter 82.44 RCW seems to flatly contradict current
RCW 82.44.135. Must Sound Transit comply with provisions of the current
chapter 82.44 RCW that did not exist in 1996 but are not contradicted by the 1996
version? If so, its agreement with the DOL seems appropriate—but a reader ofthe
statute must go through the current and 1996 chapters 82.44 RCW with a fine-
tooth comb to evaluate exactly which provisions have changed, which contradict
one another, and which stand independently. If not, Sound Transit's arrangement
with the DOL has no authority in law—and the MVET statute renders every
provision of current chapter 82.44 RCW that did not exist in 1996 invalid.
A third difference between 1996's chapter 82.44 RCW and current chapter
82.44 RCW also renders the MVET statute incomplete: 1996 chapter 82.44 RCW
refers to other (presumably 1996) statutes and chapters, but not all ofthose nested
cross-references are still on the books today. See, e.g., former RCW 82.44.060
(1996)(referencing chapters 46.87 and 46.70 RCW); former RCW 82.44.065
® Former RCW 82.44.060(1996) describes how motor vehicle excise tax is "due
and payable to the department or its agents at the time of registration of a motor vehicle."
But it refers to taxes imposed by chapter 82.44 RCW itselfand includes no provision for
transmitting revenue collected to regional transit authorities like Sound Transit.
14
BlackV. Cent. PugetSoundReg'l TransitAuth. etal.,'Ho. 97195-1
(Gordon McCloud, J., dissenting)
(1996)(referencing chapter 34.05 RCW); former RCW 82.44.170(1996)
(referencing RCW 46.16.070,.085; RCW 46.68.035).
Looking at one example, in 1996, RCW 82.44.010(3) defined a "truck-type
power or trailing unit" as "any vehicle that is subject to the fees under RCW
46.16.070 except vehicles with an unladen weight of six thousand pounds or less."
Laws of 1990, ch. 42, § 301(3). Cross-referenced RCW 46.16.070 has since been
recodified into multiple current statutes. Laws of 2010, ch. 161, §§ 530, 1217;
RCW 46.16A.455; RCW 46.17.355.
So, if a taxpayer wants to determine whether their vehicle is a "truck-type
power or trailing unit" under "chapter 82.44 RCW as it existed on January 1,
1996," where should they look? RCW 46.16.070 as it existed in 1996?^ The
recodified version now located at RCW 46.16A.455? The new statute containing
equivalent information to the former RCW 46.16.070 now located at RCW
46.17.355? Whatever the correct answer, the effects ofthe statute are far from
"readily ascertainable from the words ofthe statute alone." Citizensfor
Responsible Wildlife Mgmt. v. State, 149 Wash. 2d 622, 642, 71 P.3d 644(2003).
^ Former RCW 46.16.070(1996)in turn directs the reader to former RCW
46.16.125 (1996) and former chapters 46.44, 46.68, 46.87, and 46.88 RCW (1996).
Indeed, if we are to continue chasing the 1996 version of each cross-reference, the
legislature may well have recreated the majority of the 1996 code.
15
Black V. Cent. Puget SoundReg'l Transit Auth. 97195-1
(Gordon McCloud, J., dissenting)
This problem pervades every cross-reference in chapter 82.44 RCW as it existed in
1996.
Many of these cross-references arguably have little effect, given that they
relate to elements of the old chapter 82.44 RCW that make no sense to apply to
Sound Transit's taxation under RCW 81.104.160.^° But the legislature did not say
that. Instead, another burden falls on the reader of the MVET statute to determine
which sections ofthe old statute are effective, which cross-references within those
sections are effective, and whether to look to 1996 or current versions of those
cross-references.
Even on the subject of depreciation schedules alone, the State is confused by
the MVET statute's instructions. On the day of oral argument, the State
acknowledged that it has used not the 1996 schedule called for in the MVET
statute, but the subsequent 1998 schedule for "some time." Notice [of factual
concession], supra. Indeed, by the time Sound Transit issued its bonds in 1999,
the legislature had amended the 1990 depreciation schedule that was in effect in
1996. Laws of 1998, ch. 321, § 4. A Sound Transit executive declared that
'° The MVET statute by its terms does not apply to vehicles licensed under the
current truck, bus, and for hire vehicle licensing scheme. RCW 81.104.160(1)(citing
RCW 46.16A.455).
16
BlackV. Cent. PugetSoundReg'l Transit Auth. etal.,^o. 97195-1
(Gordon McCloud, J., dissenting)
neither Sound Transit nor any other entity has ever used the current RCW
82.44.035 schedule to collect motor vehicle excise tax. CP at 406. Apparently,
since Sound Transit issued its bonds, Sound Transit has not used the 1996 schedule
either. It seems the only schedule RCW 81.104.160 successfully implemented is
one that it did not reference: RCW 82.44.041 as it existed in 1998.
The duties imposed by RCW 81.104.160(1) standing alone are
incomprehensible, preventing it from being a complete act.
2. The MVET Statute Is Not "Excepted from Section 37['s]"
Requirements on the Ground That It Constitutes a "Reference
Statute"
The majority concludes that the MVET statute is a valid reference statute
and, hence, that it is '"excepted from [article II,] section 37."' Majority at 10
(quoting Citizens, 149 Wash. 2d at 642).
We have certainly held that "'[c]omplete acts which(1)repeal prior acts or
sections thereof on the same subject,(2) adopt by reference provisions of prior
acts,(3)supplement prior acts or sections thereof without repealing them, or(4)
incidentally or impliedly amend prior acts, are excepted from section 37."
Citizens, 149 Wash. 2d at 642(emphasis added). Thus,"reference statutes" that are
complete acts and that '"refer to other statutes and make them applicable to the
subject ofthe legislation,'" do not violate article II, section 37. State v.
17
Black V. Cent. Puget SoundReg'l Transit Auth. e/a/.,No. 97195-1
(Gordon McCloud, J., dissenting)
Rasmussen, 14 Wn.2d 397,402, 128 P.2d 318 (1942)(quoting 25 Ruling Case
Law Statutes §160, at 907(1919)).
The MVET statute, RCW 81.104.160, does include a reference to another
statute—well, to another chapter that is full of statutes. But the fact that it includes
a reference does not make it a constitutional "reference statute." Reference statutes
must first be complete acts—in other words, they must still comply with the rule
that the "scope ofthe rights created or affected by the bill can be ascertained
without referring to any other statute or enactment." Citizens, 149 Wash. 2d at 641.
As discussed above, the MVET statute flouts that rule; hence, it cannot be a valid
reference statute.
B. The MVET Statute Also Fails the Second Step ofthe Article II,
Section 37 Test Because a Thorough Search ofExisting Law Is
Insufficient To Determine Its Effects
Even if a statute is complete, it will still violate article II, section 37 if it
renders "'"a straightforward determination of the scope of rights or duties under
the existing statutes'" erroneous. El Centro, 192 Wn.2d at 129(quoting
Manussier, 129 Wash. 2d at 663 (quoting Wash. Educ. Ass'n II, 97 Wash. 2d at 903)).
Even a complete statute must "apprise those who are affected by an existing law of
any important changes" made by the newly enacted statute. Wash. Educ. Ass'n I,
93 Wash. 2d at 41. "Citizens or legislators must not be required to search out
18
Black V. Cent. Puget SoundReg'l Transit Auth. etal.,^o. 97195-1
(Gordon McCloud, J., dissenting)
amended statutes to Icnow the law on the subject treated in a new statute." Wash.
Ass'n ofNeigh. Stores v. State, 149 Wash. 2d 359, 373, 70 P.3d 920(2003)abrogated
on other grounds by Filo Foods, LLC v. City ofSeaTac, 183 Wash. 2d 770, 357 P.3d
1040 (2015). Rather, the "new statute must explicitly show how it relates to
statutes it amends." Id. (citing State v. Thome, 129 Wash. 2d 736, 756, 921 P.2d 514
(1996)). The MVET statute fails this test as well.'^
In El Centro, we held that the charter school statute's collective bargaining
provisions violated this test because they "require[d] a thorough search of existing
laws in order to understand [their] effect on other provisions." Id. at 131-32. The
statute violated article II, section 37 because it affected collective bargaining rights
without referencing any collective bargaining statutes, not even the ones changed
by the new charter school laws. Id. The charter school statute at issue therefore
failed to "apprise those who [were] affected by" the existing collective bargaining
statutes of the "important changes" made by the newly enacted statute. Wash.
Educ. Ass'n I, 93 Wash. 2d at 41.
"I agree with the majority's conclusion that we must consider this second step of
the article II, section 37 analysis even where the challenged legislation is a complete act.
Majority at 13.
19
Black V. Cent. Puget Sound Reg'I Transit Auth. e/fl/.,No. 97195-1
(Gordon McCloud, J., dissenting)
The MVET statute suffers from the same defect. It invalidates numerous
statutes in current chapter 82.44 RCW without setting them forth and so fails to
alert those affected by current laws that a new scheme is in effect. First and
foremost among these invalidated statutes is the current depreciation schedule,
RCW 82.44.035.
The current depreciation schedule, by its terms, calculates the value of
vehicles "[f]or the purpose of determining any locally imposed motor vehicle
excise tax." RCW 82.44.035(1),(3)(emphasis added). A taxpayer or legislator
reading this broad language would reasonably understand it to apply to "any"
motor vehicle excise tax collected by Sound Transit. But the legislature rendered
that understanding erroneous when it passed the MVET statute, which covertly
amended the applicability of the current depreciation schedule contained in RCW
82.44.035. And because the MVET statute did not fully set forth RCW 82.44.035,
it does not "apprise those who are affected by an existing law"—namely, readers
of the current depreciation schedule—"of any important changes" the MVET
statute made to the current schedule, including rendering the current schedule
inapplicable. Wash. Educ. Ass'n I, 93 Wash. 2d at 41.
In passing the MVET statute, the legislature amended the current
depreciation schedule, RCW 82.44.035, without setting it forth at full length.
20
Black V. Cent. Puget SoundReg'l Transit Auth. e?a/.,No. 97195-1
(Gordon McCloud, J., dissenting)
Through that amendment, no reader of the current depreciation schedule can
understand the law as it stands today without "a thorough search" of the Revised
Code of Washington and its archives. El Centra, 192 Wash. 2d at 131. By rendering
the current schedule erroneous without setting it forth in full, the MVET statute
violates the second prong of the article II, section 37 test.
Conclusion
Article II, section 37 exists to prevent'"separate and disconnected
legislative provisions . . . scattered through different volumes'" from creating
confusion, ambiguity, and uncertainty in the law. Amalg. Transit, 142 Wash. 2d at
245 {quoting Flanders v. Morris, 88 Wash. 2d 183, 189, 558 P.2d 769(1977)
(quoting State ex rel. Gebhardt v. Superior Ct., 15 Wash. 2d 673, 685, 131 P.2d 943
(1942))). The effects of the MVET statute before us are scattered not only across
the code but also across a complicated 24-year history. And the MVET statute
renders another enactment of our legislature—the current depreciation schedule—
inoperative without ever referencing it, much less setting it forth "at full length."
The MVET statute therefore violates the constitutional mandate designed to
provide clarity to the legislative process. I respectfully dissent.
21
Black V. Cent. Puget SoundReg'l Transit Auth. etal.,^o. 97195-1
(Gordon McCloud, J., dissenting)
22