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.
