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The judiciary in Washington State is peculiar. Scroll down to see why.
EIGHT COLLUSIVE CLAIM LAWSUITS -- BACKGROUND
A handful of Seattle lawyers regularly obtain from that court opinions saying what governments want despite laws and legal authorities to the contrary that should protect the public's rights and interests. This occurs in lawsuits implicating municipal governance, long-term bond contracts, and taxation powers. Collusive claims are brought, and the justices respond by handing out ad hoc case law.
The lawyers at the center of these lawsuits are from the law firms that represent local governments and the underwriters in connection with municipal bond issuances -- this 2016 Official Statement identifies them:
https://m.soundtransit.org/sites/default/files/series-2016-green-bonds-official-statement.pdf
When these lawsuits are brought before them the justices overlook 1) the anomalies in the pleadings, briefings and court records, as well as 2) the lawyers’ conflicts of interest. The justices then disregard controlling legal authorities and invent aberrant decisional law from whole cloth. The primary reason for this behavior is banal: it ensures the justices' cakewalk reelections.
The Wikipedia entry about collusive claims is here:
https://en.wikipedia.org/wiki/Collusive_lawsuit
It references several other examples of collusive litigation.
Due to the opinions discussed below, and unlike anywhere else in the country, households of modest means here now are subjected to perpetual and heavy regressive taxing for transit. Households are harmed financially, and the people who can least afford it are harmed the most. There is no good reason for financing buses or trains as it is done here (numerous examples exist of vastly superior transit governance and infrastructure financing practices).
Background.
In 1990 a voting right over the councilmembers of a municipality based in Seattle that was taxing, issuing long term debt, and financing/operating transit was determined to be unconstitutional. That Municipality of Metropolitan Seattle voting right violated Americans' fundamental right to an equal vote to control who their local legislators are. The particular 14th Amendment limit on states’ powers 's voting right violated was the one-person, one-vote requirement of the equal protection clause. The state statutes that provided this voting right operated to render the votes of some of the districts' residents less effective than those other residents obtained.
Outside counsel for old-Metro included lawyers from Preston Gates and Foster Pepper. They wanted a new, fatter cash cow municipal entity. They prepared some draft enabling statutes, and in 1992 the state legislature adopted those. They called it Sound Transit. Its board was delegated more substantial governmental powers than old-Metro possessed. Problem is, the unprecedented-in-the-U.S. statute establishing the voting right over Sound Transit’s boardmembers provided an attenuated form of franchise right that fails to meet 14th Amendment standards.
In the lawsuits described below, collusive claims were brought to provide case law "cover" for the legal flaws with Sound Transit's voting right, certain of its taxing and other financing practices, and that government’s use of state highway infrastructure. The Justices eagerly delivered what the governments' lawyers wanted in these pretextual lawsuits.
1998 & 2004
Dissembling by the court re: the significant 14th Amendment limits on the states' authority when they provide a voting right over local government legislators.
http://caselaw.findlaw.com/wa-supreme-court/1189466.html
The justices in this opinion ignore the conflicts of interest. The lawyers who brought the claims were from Anderson Hunter, the largest Everett law firm. It regularly represents municipalities north of Seattle, so its lawyers have an apparent conflict in bringing "individuals vs. government" municipal law claims like these.
A very limited set of governmental powers had been delegated by the state to that library board. Accordingly, under longstanding 14th Amendment precedents it was legal for that entity to have an appointive board. The reason for that is the board's powers were limited so that it only could administer governmental policies the state legislature established for it.
Instead of analyzing that issue correctly, the opinion addressed the defective claims the complicit lawyers framed. The 14th Amendment claims the Anderson Hunter lawyers raised were specious. Moreover, those federal constitutional claims failed to reference any of the SCOTUS precedents that address the issue of when states must provide equal, effective voting rights. The flawed analysis from this opinion was used as precedent in opinions addressed below.
2004
This opinion allowed excessive taxing and spending because the court feigned ignorance of a $3.9 billion capital cost spending limit in the 1996 ballot measure.
http://caselaw.findlaw.com/wa-supreme-court/1389055.html
City Councilmember Sally Bagshaw’s husband brought and prosecuted these claims. Sally Bagshaw was the top civil law attorney for King County, so there is no way her husband would raise anything but specious claims against Sound Transit. The justices ignored this conflict of interest.
Bradley Bagshaw raised claims that were certain to lose. He claimed that legal limits existed in the ballot proposition, pursuant to which 1) capital construction had to end ten years from approval of the ballot measure, and/or 2) commencing work on a 14-mile light rail line was prohibited, and/or 3) imposing taxes for more than 10 years was prohibited. The text of the "Sound Move" resolution voters approved did not require any of those things.
It's easy for lawyers to get judges to reject claims when those claims are devoid of merit. What's "special" about the justices of this state is how they elaborate on meritless claims in lawsuits implicating massive "tax and spend" policies.
Bagshaw's briefing ignored the tax revenue spending limit of $1.98 billion (it is in Table 2 of the resolution known as “Sound Move”). The justices took their cue from this omission, and they also pretended it did not exist. That bench knew full well the transit interests (especially Sound Transit's financiers) wanted out from under that spending cap.
Bagshaw and his partner Jurca were tapped by government lawyers to represent the public's interests in other lawsuits, including when claims against Seattle/City Light were at issue (both before and after this "Sane Transit" litigation). The governments’ attorneys really like how these private firm lawyers operate when "individual vs. government" claims are at stake.
Bagshaw then was selected to again bring incorrect, sure-loser claims implicating the RTA’s interests in 2011. Here’s the resulting opinion:
https://www.leagle.com/decision/inadvwaco140419000157
A legitimate claim to invalidate the purchase by the Port under those facts would have been based on RCW 53.08.290. That statute would have been the basis for a legitimate, strong claim that the Port's purchase of the limited freight rail use rights from BNSF was not authorized. That is because the Port of Seattle never had any intention of using such limited rights in that 42-mile strip of land in relation “to the intermodal movement of interstate and foreign cargo”. Instead, the Port only bought what BNSF wanted to sell as an accommodation to five other local governments for them to use those interests for their purposes.
2005 & 2006
Opinion allows continued impositions of a type of annual vehicle value tax the statute did not authorize.
http://caselaw.findlaw.com/wa-supreme-court/1441814.html
Sound Transit’s board decided to implement a type of annual vehicle value tax the statute did not authorize. The goal was simple: Sound Transit wanted a far greater tax revenue stream than the one it would have had if it implemented a tax that complied with the statute. An example of a legal tax implemented under the statute would have been one measured by how much or where the vehicle had been used, and capped at the specified percentage of the vehicle's value.
The statute only authorized an excise tax, a type of tax that has a plain meaning. That kind of tax comes due in an amount the taxpayer can control, and non-payment of it won't render the property useless. The right kind of claim -- one the complicit lawyers did not raise -- would have been based on how the tax Sound Transit implemented was not an excise tax comporting with that plain meaning.
The deficient, certain-to-lose claims raised by Jim Smith and James Hennessey are described in the opinion. Those claims were exactly what Sound Transit’s lawyers wanted.
The claims raised falsely presumed the statute at issue provided the necessary authority to impose "an MVET." Here are three examples from the opinion of this false presumption upon which the lame claims were based:
1) “Appellants appear to conclude that Sound Transit may collect an MVET up to 0.3 percent annually but only until such taxation on a given vehicle reaches a sum total of 0.8 percent . . ..”
Non-collusive, legitimate, and strong arguments based on what kind of tax the enabling legislation actually identified would have asserted that Sound Transit had absolutely no right to implement “an MVET.” An excise tax is the only kind of tax the statute allows. Numerous precedents establish excise taxes have features that include the ability of the taxpayer to control the amount of the tax that comes due, and the tax must be avoidable without rendering the property useless. In addition, the related statutory provisions also establish the legislature did not intend an annual tax based on the value of the vehicle was to be implemented (including the provisions using different language that DO expressly authorize “MVET – type” taxes).
2) “There is no dispute as to the underlying facts of this case. . . . RCW 81.104.140 authorizes a regional transit authority, such as Sound Transit, to collect revenue from several funding sources, including an excise tax on motor vehicles.”
Non-collusive claims absolutely would have disputed that particular "undisputed" interpretation of the statutory language. Under a "plain meaning" analysis NO tax on motor vehicles was authorized. Instead, only taxing that was a function of how much, and/or when, and/or where an owner actually used the motor vehicle was authorized.
3) “Contrary to Appellants' assertion, there is no basis to conclude that 'register' or 'license' somehow operate as indispensable words without which a local authority is precluded from using vehicle registration as the event triggering taxation on the privilege of driving. Such an exceedingly rigid view of the constitutional analysis would be antithetical to the legislature's ability to delegate its authority to tax.” Non-collusive claims wouldn’t have asserted registering or licensing a vehicle was authorized as the event triggering the kind of tax the terms of this statute allowed Sound Transit to implement.
The strong, legitimate arguments that should have been brought include the following: the related statutory provisions do specify registering and licensing vehicles are to trigger different taxes, demonstrating that the legislature intended some other act had to be the event triggering (and measuring) the kind of excise tax Sound Transit’s board was allowed to implement pursuant to the statute.
2006
The “Monorail Authority as Proxy” litigation opinion.
Holdings in this opinion are not based on legitimate legal authorities. Some of those holdings stem from the false premise that approval of a local government’s ballot proposition somehow insulates that entity from claims relating to the legality of the voting right provided over the legislators. This opinion also includes a patently incorrect holding to the effect that approval of a municipality’s ballot proposition amounts to a delegation of governmental power to that municipality (“[V]oter approval of a local board selection is an appropriate delegation of power to an appointed board of a municipal corporation.”)
http://courts.mrsc.org/supreme/156wn2d/156wn2d0752.htm
Lawyers on both sides of this lawsuit were from Foster Pepper. Its lawyers are among the small group that provides primary outside counsel services for local governments including Sound Transit. Cam Hall was a Foster Pepper partner for decades, and here he appears as counsel for citizens against Foster Pepper's municipal client. Other lawyers purporting to represent the public's interests in this case (from the Garvey Schubert firm) later merged their firm with Foster Pepper -- that's the antithesis of adverse.
If the lawyers ostensibly representing "the people" really wanted to vindicate the public’s interests they would have raised claims based on the 14th Amendment precedents requiring that voting rights for local government policy makers be equal and effective. Instead, they brought defective state law claims, such as this:
“Appellants contend that delegation of legislative taxing power to a nonrepresentative entity is never allowed, maintaining that ministerial functions may only be delegated.”
That’s never been the law anywhere in the U.S., and the one opinion cited in support doesn’t even contain the word “ministerial.”
The lawyers supposedly representing the public's interests spelled out for the justices fake, sure-loser claims in their pleadings and briefings. Those claims focus on facts and precedents that 1) don’t amount legal violations, and 2) cover up the actual legal flaws.
Barbara Madsen then plays along with the lawyers in the opinion she authored. Her opinion quotes the claims verbatim, and slams them. She doesn’t indicate they are defective, she doesn’t say what the controlling law and decisional authorities are that do apply in this kind of situation, and she plays dim about the manifest conflict of interest presented by Foster Pepper attorneys appearing on both sides of this case (it is bond counsel for local government issuers here, and they needed case law cover for the taxing and bonding practices stemming from the bond sale contracts employed locally).
Those lawyers (in their briefs) and the justices (in their opinion) fail even to mention the 14th Amendment precedents from SCOTUS that bear on the key voting rights issues. Not one of the opinions where SCOTUS analyzes the propriety of voting rights over local legislators is identified, such as these:
https://www.scribd.com/document/376834294/Sound-Transit-Claims-Outline
In the following passage of its opinion the majority again dissembles -- the justices want to mislead about the significance of voter approval of this local government's ballot proposition:
Seattle voters also approved of the selection process for the governing body of SMP.
It doesn't matter if voters approve an unconstitutional governing board selection process. If local district voters approve any kind of unconstitutional policy that policy does not thereby gain legitimacy (this is what the "hierarchy of laws" principles are all about). It would not have mattered if 100% of Seattle residents wanted the state to deny them voting rights of the type the 14th Amendment requires – such “consent” would not cure any constitutional defect.In the following part of the opinion the Court feigns ignorance of the Federal Constitution's Fourteenth Amendment precedents bearing on whether a state must afford residents an equal, effective vote over local legislators by pointing out the complicit lawyers raised unsupported claims:
Appellants do not point to any language in the Washington Constitution that supports their position that it is unconstitutional for unelected board members to be delegated legislative taxing authority.
Had those lawyers not been acting complicitly with the governments' lawyers they would have raised appropriate 14th Amendment claims. The justices don’t address that inexplicable failure, as they want to play along with these collusive lawsuits, keep the public ignorant, and provide case law "cover" for Sound Transit's financial beneficiaries.
Acting complicitly paid off big time for the lawyers involved, including for the AG (he secured a partnership at Orrick, underwriters’ counsel for Sound Transit’s subsequent debt issuances). Gerry Alexander got his after he retired from the bench – Sound Transit’s lawyers included him as outside counsel in several lawsuits where public entities paid Alexander big attorneys’ fees.
2006 & 2013
A "$30 car tabs" initiative opinion. It provides Sound Transit with unjustified case law allowing its defective voting right and aberrant taxation policies to continue. It is the apotheosis of collusive-claim litigation in Washington State.
This case had been remanded by the Justices for resolution of a narrow issue - whether terms in an initiative impaired certain contracts in violation of the "contracts clause." In the appeal of the trial court's determination of that issue, a Tim Eyman entity raised a slew of certain-to-lose new claims. The opinion addresses them, despite the fact that no adequate briefing or resolution of them had occurred at the trial court level, no sufficient factual record relating to them existed, and these issues were well beyond the scope of remand. The governments got everything they wanted out of this opinion.
This opinion begins disregarding precedents at Paragraph 48:
https://scholar.google.com/scholar_case?case=16184161878121636503&hl=en&as_sdt=6&as_vis=1&oi=scholarr#p1018
The appellate brief shows the intervenors did not even raise that argument:
http://www.soundpolitics.com/I-776_Opening_Appeal_Brief.pdf .
Barbara Madsen put this in the opinion: “[A]lthough the members on the board are appointed, all but one of the board members are elected officials, providing the taxpayers a vote.” That's a lie by omission. The voting right residents were provided falls far short of what the Federal Constitution demands.
Residents of the RTA district have a right to a full, effective and equal vote to control the membership of that local government's policy making body. Madsen knows full well the voting right provided RTA residents fails to meet those constitutional standards. She pretended the legal infirmities didn't exist though, to curry favor with the RTA's financial beneficiaries. This powerful interest group wanted the RTA's activities placed above laws, and it wanted the public ignorant of its rights. Madsen was more than happy to act dishonestly to further that interest group's goals.
https://www.scribd.com/document/376834294/Sound-Transit-Claims-Outline
The opinion holds sufficient procedural safeguards exist to prevent administrative abuses. Legislative powers, not merely administrative functions, were delegated by the state to the board. Moreover, the four illusory "procedural safeguards" the opinion references in fact could not prevent administrative, let alone legislative, abuses of power.
The kind of legal claim that should have been brought, but was not, would have cited the relevant 14th Amendment authorities limiting states' authority when providing voting rights over local government legislators. As none of the lawyers involved wanted that issue addressed, it is ignored in the briefing. The majority then follows suit -- the Justices feign ignorance of the key facts and legal authorities that comprise the legal claims that people could use to vindicate their rights. It's garden variety judicial corruption -- cover up what your patrons want covered up.
The state highway (I-90) property handover litigation.
The plaintiff was Kemper Freeman, the individual in this state with the most to gain financially from the Justices allowing the state to transfer the infrastructure Sound Transit needed (despite how fuel tax revenues had been used to acquire, plan, construct and maintain that stretch of highway). Phil Talmadge was Freeman’s lawyer. Talmadge was a Justice, so he knows how the game is played. He filed two collusive claim lawsuits. Here’s the Supreme Court opinion that came out of the second one:
http://courts.mrsc.org/supreme/178wn2d/178wn2d0387.htm
It repeatedly states WSDOT would transfer “lanes” (for example: “Sound Transit also agreed to advance the cost of replacing the center two lanes, credited toward its lease.”) What WSDOT actually intended to transfer was “property and improvements between Seattle and Bellevue, Washington” (e.g., parts of concrete pontoons and roadbeds – infrastructure built and maintained using fuel tax revenues). That truth was part of the record. See, CP 1380 here
http://www.courts.wa.gov/content/Briefs/A08/872678%20respondents%20brief.pdf
The Justices used the intentionally-defective claims’ language, and they feigned ignorance about both what the documents say and the controlling laws to misrepresent the transaction. They did that because the constitutional limit that protects the interests of the driving public doesn't apply to “lanes” (there was no fuel tax revenue spent on those). This opinion allowed the governments to ignore the significant interests of the driving public the 18th Amendment to the state constitution is supposed to protect: the ongoing use of this critical highway infrastructure planned, built and maintained using fuel tax revenues.
2018 & 2020
A new lawsuit was filed in 2018 that appears to be another example of collusion between the attorneys. This is an early media report on it:
Here's the complaint:
https://assets.documentcloud.org/documents/4495593/Sound-Transit-Class-Complaint.pdf
The claim is that a provision in a lengthy 2015 session law amended a vehicle value schedule in RCW 82.44 in violation of Article II Sec. 37 of the state constitution. The allegedly-improper provision now is codified in RCW 81.104.160(1).
Case law establishes the state legislature does not improperly amend existing statutes when it does exactly what it did in that part of the 2015 enactment. The text at issue demonstrates the state intended to supplement a prior statute without repealing it (e.g., that initial reference to the statute “chapter 82.44 RCW” as it then existed), and the state legislature also properly adopted by express reference provisions of a prior statute (e.g., the provision's explicit reference to “chapter 82.44 RCW as it existed on January 1, 1996”). Both of those things are permitted:
This court has adopted the rule that Art. II, § 37, of the state constitution is not violated in the following instances: (1) complete acts which repeal prior acts or sections thereof on the same subject; (2) complete acts which adopt by reference provisions of prior acts; (3) complete acts which supplement prior acts or sections thereof without repealing them; (4) complete acts which incidentally or impliedly amend prior acts.
Naccarato v. Sullivan 46 Wn.2d 67 (1955)
Provisions in this complaint indicate indicate is a collusive lawsuit, not just bad lawyering. One of the allegations is a fatuous legal opinion that is exactly what Sound Transit’s lawyers and its PR team want. It is a false assertion that the Court provided a ruling in a 2006 opinion (the second one referenced above) that authorizes Sound Transit to continue imposing the annual car tax at a specific rate through a specific date:
“57. In 2006, the Washington Supreme Court permitted Sound Transit to continue to levy the 0.3% MVET for so long as the bonds remain outstanding.”
Here’s the referenced 2006 opinion:
The Court’s holdings in that opinion related to the taxing granted no affirmative relief for Sound Transit. That opinion also did not permit or authorize any amount of future taxing, taxing for any additional period of time, or taxing at any particular rate. The legal conclusions only were those necessary to reject the argument that terms in I-776 required Sound Transit to stop imposing the tax immediately. The opinion holds the contracts clause of the state constitution prohibited subsequent legislation (I-776) from operating to terminate one of the tax streams pledged as security to bondholders.
Contrary to what is asserted about that opinion in the new lawsuit, no claim even was raised in it based on how the 1996 Sound Move proposition presented to voters contained language limiting the amount of taxing (see Table 1 of Sound Move). The opinion certainly did not eliminate that provision in order to “permit[ ] Sound Transit to continue to levy the 0.3% MVET for so long as the bonds remain outstanding.”
Another reason this claim appears collusive is that it only relates to the 2015 amendment of RCW 81.104.160. The amendment the plaintiffs focus on -- the reference to use of the vehicle value depreciation schedule effective in 1996 for calculating the Sound Transit car taxes -- already was part of that statute. See, subsection 3, added by the legislature in 2010.
The lawyers involved in this litigation apparently set it up so Sound Transit could not lose any taxing authority or be ordered to refund tax amounts paid back to vehicle owners.
The claim is that a provision in a 2015 session law relating to Sound Transit’s annual car taxing improperly amended a vehicle value table in another statute. The allegedly-improper provision is identified in the complaint as the second half of Sec. 319 of the lengthy 2015 transportation session law that was approved in the extra session that year. The claim is that this provision unconstitutionally amended a vehicle value table in ch. 82.44 RCW.
Part of the relief the car owners seek is a declaratory judgment that the provision at issue is void. Let’s say that part of their claims is meritorious, and the court declares that this provision improperly amended the vehicle value table. The court could grant that relief – a declaratory judgement to that effect would be issued. What would that court order mean for anyone? Essentially nothing. If those provisions are declared void, the court then would read the statute as if it had not been amended by adding them. That would mean that terms already in the statute requiring use of the 1996 vehicle value table would continue to be used by DOL when calculating the annual car tax for Sound Transit.
That 2015 session law has a severability provision in section 425, which means that everything else in that session law would continue to be fully effective if a part of it is struck down. That would include the first half of section 319, which is the tax grant language. As that provision would remain operative, it would allow Sound Transit to continue imposing the same higher “ST3” tax rates when vehicle owners renew their registrations that it now imposes.
The five vehicle owners also seek other relief, mainly refunds of amounts unlawfully collected in the event the provision they seek voided is declared unconstitutional. There would be no such amounts, even if the allegedly-offending language were to be stricken as void, as the tax authority granting language in the 2015 session law isn’t unconstitutional and the statute already compelled DOL to use the 1996 vehicle value table.
Sound Transit actually would end up collecting MORE tax revenue going forward, as the court would order DOL to comply with the 1996 vehicle value table that the statute required DOL to use when calculating Sound Transit’s annual car tax prior to the 2015 amendment. According to the AGO, DOL has been ignoring that statute that has been on the books for the past eight years, and instead it now is using a 1999 vehicle value table:
2020 opinion regarding “Another $30 Car Tabs Initiative”
This litigation was intended by the attorneys to build on the precedents afforded by the second 2006 opinion (see above). For this defective initiative (I-976) the AG's office actually drafted a misleading ballot title to ensure the measure would be voided if approved.
The same lawyers prosecuted this lawsuit. For this appeal they used the same claims (including an identical single-subject violation), some of the same litigants, and an identical discovery-free procedural background. Burien’s debt contract impairment claim (in particular) could have provided them manna.
The justices used that 2006 opinion as the "dispositive" precedent for their ruling that I-976 violated the single-subject limit.
