Months following a strong public backlash to Sound Transit’s new motor vehicle excise (MVET) tax for ST3, state lawmakers this week commenced formal investigations into the ballot measure approved by voters last November. A Sept. 26 work session of the Senate Law and Justice Committee examined the legality of the ballot language, as well as the way it was framed to legislators in 2015 when they authorized it.
Although no initiatives or new legislation was discussed, some observers note that work produced in the sessions may serve as a basis for future proposals.
The investigation was spurred by a May 12 letter to Chair Sen. Mike Padden (R-4) signed by Sens. Dino Rossi (R-45) and Steve O’Ban (R-28). In it, they accused Sound Transit officials of misleading lawmakers as to ST3’s total costs and questioned the use of a depreciation schedule as part of ST3’s MVET tax.
Sound Transit’s MVET depreciation schedule that is used to determine a vehicle’s value was first approved in 1996 but later repealed. Although referenced in the 2015 transportation funding legislation, 2ESSB 5987, lawmakers including Rossi and O’Ban say the language violates Article 2 Section 37 of the State Constitution’s “forth and full” requirement when amending or revising state law, which states that laws revised or amended in legislation cannot merely be referenced by chapter. In this case, the 2015 state law references the chapter, but not the specific provision.
Testimony on its legality was mixed. State Code Reviser Kyle Thiessen told the committee that while he works on draft bills during the legislative session, he’s not allowed to comment on their constitutionality during that process. He added that “adoption by reference is a time-honored and common practice by the legislature. To me there’s nothing inherently concerning about adopting by reference.”
“As far as opinions about constitutionality, you’ve got the attorney general and the courts,” he said.
Gonzaga Law Professor David DeWolf offered a more opinionated perspective to lawmakers. He told the committee that the text’s use of the word “notwithstanding” makes it constitutionally problematic, because “it doesn’t set forth in full what the existing statue is that would be affected and how it would be affected.” Quoting the State Supreme Court’s majority opinion in the 1979 case Weyerhaeuser v. King County, he said: “the purpose of the constitutional provision (Article 2 Section 37) was to protect the members of the legislature and the public against fraud and deception.” However, he added that “I think it’s not necessary to allege or establish that there was actual fraud or deception.”
Yet, committee members such as Sen. David Frockt (D-46) expressed skepticism. Although the 2015 law references the chapter for the MVET schedule but does not cite it specifically, it is the only section that does provide any reference.
“It’s not confusing to me at all,” Frockt said.
Ranking Minority Member Jamie Pedersen (D-43) agreed, citing a proposed amendment by Sen. Doug Ericksen (R-41) to the 2015 law that pertained to the MVET depreciation schedule.
He asked DeWolf: “I’m wondering how there could be in your mind any confusion among the legislators about whether we were talking about the new depreciation schedule or the old depreciation schedule.”
However, others such as House Transportation Chair Judy Clibborn (D-41) stated earlier this year she didn’t realize Sound Transit would use the 1996 MVET deprecation schedule.
Tim Eyman told the committee that the bill language in question should be held to the same constitutional standards as initiatives he sponsored such as I-747, which sought to cap property tax increases to one percent annually. That initiative was overwhelming approved by voters, but later struck down by the State Supreme Court for violating the “forth and full” clause.
“This was a ballot measure that crossed out one number and replaced it with another,” he said, adding that the court only took into consideration the actual ballot language and not other material such as the voter pamphlet.
“Since the election of ST3, Sound Transit has been blaming the legislature and the voters for not reading the fine print,” he added. “The fine print of Sound Transit’s bill was drafted to purposefully mislead the legislature and deceive the voters.”
Also testifying were Sound Transit officials, who were questioned over the message pitched to lawmakers during the 2015 session, when officials sought $15 billion in taxing authority from the legislature for ST3. Later on, the regional agency announced ST3’s total cost would be an estimated $55 billion. Senate Transportation Chair Curtis King (R-14) has stated they would not have given Sound Transit the green light had they known the full price tag, a view also shared by Clibborn.
“In May 2017, you still have senators out there thinking they were voting on $15 billion,” Sen. Jan Angel (R-26) said. She later told Sound Transit Public Information Manager Geoff Patrick that this confusion was also found among voters.
“There was an absolute tsunami of people that had no clue what they had voted for,” she said. “So, if there is that kind of concern, I would really question how clear this was to your citizens, because those are the citizens we’re hearing from right now.”
As part of the Senate investigation, three public records requests resulted in 7,000 pages of documents from Sound Transit and other organizations. Emails sent to and from Sound Transit officials repeatedly refer to $15 billion in taxing authority needed for ST3.
Frockt suggested that the emails referred to the amount Sound Transit sought from the legislature, not the total amount they would seek from other sources. “I do think we ought to have the full context of the discussion that was going on at that point in time.”
Referring to Sound Transit emails, O’Ban asked Director of Government and Community Relations Ann McNeil: “Wouldn’t you agree that a reasonable interpretation of that line (is that) you were seeking the full authority of $15 billion and not a penny more? Can you cite me any document, any page presented to lawmakers in 2015 that indicated to them you… might seek more than $15 billion?”
McNeil replied that “we made every attempt to articulate the request the (Sound Transit) board was making of the legislature,” but added she did not know of any document discussing additional funding beyond $15 billion.
It was a point also raised by Sen. Lynda Wilson (R-17) regarding a 2014 survey that purported to show 70 percent voter support for ST3. Those polled were asked if they would support a measure of “new capital projects totaling approximately $15 billion.”
A June survey found a majority of voters are now opposed to ST3, and only 37 percent would vote for it again.
The committee’s next work session is scheduled for October 5.