City of Spokane v. Horton

Opinion

/FT IN CLERKS OFFICE opinion was filed for record at t'/ftOdtK SUPRBE COUICT,8TOE OF VISASNMSIQN 1 SEC 0 7 2aj? "1 SUSAN L. CARLSON SUPREME COURT GLERK IN THE SUPREME COURT OF THE STATE OF WASHINGTON

CITY OF SPOKANE,a municipal corporation located in the County of No. 93788-5 Spokane, State of Washington,

Petitioner,

V. En Banc

VICKI HORTON,Spokane County Assessor, and ROB CHASE, Spokane County Treasurer, and THE STATE OF WASHINGTON,by and through the Department of Revenue,

Respondents.

Filed ^^

JOHNSON,J.—^Article VII ofthe Washington Constitution requires that all

taxes be uniform upon the same class of property. See CONST, art. VII, §§ 1,9, 10.

In February 2015,the city of Spokane (City) enacted an ordinance that granted a

local property tax exemption to senior citizens and disabled veterans. Relying on a

letter by the Department of Revenue(DOR)stating its belief that the ordinance

violates article VII, the Spokane County assessor and treasurer (collectively

County)refused to implement the ordinance. The issue in this case is whether the City ofSpokane v. Norton, No. 93788-5

City's ordinance violates article VII ofthe Washington Constitution's uniform

property tax requirement.

The trial court ruled that the ordinance was constitutional and issued a writ

requiring the County to apply it. DOR filed a motion to intervene, and both DOR

and the County appealed the trial court's ruling. DOR was made a party for

purposes of appeal. On appeal, the Court of Appeals reversed and held that the

City's ordinanee violated article VII, section 9 ofthe Washington Constitution.^

City ofSpokane v. Norton, 196 Wn. App. 85, 87, 380 P.3d 1278(2016), review

granted, 187 Wn.2d 1017, 390 P.3d 342(2017). We affirm.^

Facts and Procedural History

In 2004,the City obtained voter approval for a street bond to pay for street

projects. The City initially planned to complete the projects over 10 years, then retire

the street bond under a 20-year retirement levy, a type ofexcess levy. See RCW

84.52.056. In 2014,the City completed the planned projeets but still had 10 more

years to pay off its remaining bond debt. The City proposed a new strategy to pay off

the bonds, as well as extend the City's street program for another 11 years. The

'Because the Court of Appeals held that the ordinance was unconstitutional, it did not reach the issue raised by the County concerning whether the writ of mandamus was an appropriate remedy.

^ The Washington State Association of Municipal Attorneys filed an amicus brief in support of the City. City ofSpokane v. Norton, No. 93788-5

proposal involved swapping out the $0,57 per $1,000 assessed value imposed under

the City's excess bond levy with an equivalent $0.57 increase in the City's regular

property tax rate. To do this, the City needed to raise its regular property tax levy by

more than the statutory levy lid. See RCW 84.55.010,.050. In November 2014,the

City referred a levy lid lift proposition to its voters and the voters approved. Acting on

information provided by the Spokane County Assessor's Office, the City represented

to voters that those who qualify for a tax exemption at the state level under RCW

84.36.381 would continue to be exempted from a portion ofthe new levy.

After voters approved the levy, however,the assessor's office informed the

City that those qualified under the state tax exemption would not be exempt from the

new levy.^ The City then attempted to work with the assessor's office to resolve the

issue until it was apparent the discussions were futile. On February 9, 2015,the City

enacted its own fix. Ordinance C-35231, at issue in this case. The ordinance

^ According to DOR,the distinction between a ballot proposition to raise the statutory limitation on a regular levy(a levy lid lift) and a ballot proposition to authorize a special or excess levy (an excess levy) has implications for persons receiving an exemption from taxes under the state tax exemption, RCW 84.36.381. The legislature exempts qualified persons under RCW 84.36.381 from paying excess levies, but requires them to pay regular property taxes at a reduced rate. RCW 84.36.381(5)(a)-(b); WAC 458-16A-140(2). DOR believes that the City proposed increasing the regular property tax rate by $0.57 per $1,000, and that therefore the exempted individuals' total property taxes would also increase. During oral argument, there seemed to be some confusion as to whether the ordinance was an excess levy or regular levy. See Wash. Supreme Court oral argument. City ofSpokane v. Norton, No. 93788-5(May 18, 2017), at 5 min., 25 sec., audio recording by TVW,Washington State's Public Affairs Network, available at http://www.tvw.org. The question of whether the ordinance was an excess levy or regular levy seems to play a role, although neither party squarely briefed this issue. Regardless, we address the issue as presented: whether the City has the power to grant a local tax exemption. City ofSpokane v. Norton, No. 93788-5

authorizes a citywide local property tax exemption for everyone who would qualify

for the state exemption.

The County sought advice from DOR as to whether the ordinance was

consistent with Washington's laws and constitution. Relying on a letter from DOR

that stated the ordinance "creates an exemption that is not authorized under state law,'"

the County refused to implement the ordinance. Clerk's Papers at 92.

The City then filed this lawsuit, seeking a writ of mandamus compelling the

County to implement the ordinance. The Spokane County Superior Court granted the

petition and issued the writ, ruling that the ordinance was constitutional and that the

County breached its ministerial duty to implement it. After the writ was issued, DOR

filed a motion to intervene to protect the interests ofthe State. The superior court

made DOR a party for purposes of appeal.

The County and DOR appealed to Division Three ofthe Court of Appeals,

which reversed in a divided opinion. The majority opinion held that the ordinance

violated article VII, section 9 ofthe Washington Constitution because it resulted in a

nonuniform tax. The City sought this court's review, and we granted it.

Analysis

To determine whether the ordinance here is constitutional, some background

information on Washington's property tax system is necessary. Washington's

property tax system is regulated under constitutional and statutory provisions. Article City ofSpokane v. Horton, No. 93788-5

VII ofthe Washington Constitution places restrictions on the assessment and taxation

ofreal property. Section 1 provides:

All taxes shall be uniform upon the same class of property within the territorial limits ofthe authority levying the tax and shall be levied and collected for public purposes only. The word "property" as used herein shall mean and include everything, whether tangible or intangible, subject to ownership. All real estate shall constitute one class: Provided, That the legislature may tax mines and mineral resources and lands devoted to reforestation by either a yield tax or an ad valorem tax at such rate as it may fix, or by both. Such property as the legislature may by general laws provide shall be exempt from taxation.

Const, art. VII, § 1. Section 1 provides that unless explicitly exempted from taxation

by the legislature, all real estate constitutes one class that must be taxed uniformly at

the same rate and the same ratio of market value to assessed value. Boeing Co. v. King

County, 75 Wn.2d 160,449 P.2d 404(1969). Tax uniformity is the "'highest and

most important'" of all requirements to our state tax system. Inter Island Tel Co.

V. San Juan County, 125 Wn.2d 332, 334 883 P.2d 1380(1994)(quoting Savage v.

Pierce County, 68 Wash. 623, 625, 123 P. 1088 (1912)). But absolute uniformity is

not required.

Section 2 limits the aggregate of all annual property tax levies on a particular

property to no more than one percent ofthe true and fair value ofthat property. City ofSpokane v. Horton, No. 93788-5

Const, art. VII, § 2. However, section 2 allows taxing districts to impose additional

levies above the regular amount if voters approve under specific conditions."^ The Washington Constitution also sets forth an explicit exception from

uniformity in article VII, section 10:

Notwithstanding the provisions of Article 7, section 1 (Amendment 14) and Article 7, section 2(Amendment 17), the following tax exemption shall be allowed as to real property: The legislature shall have the power, by appropriate legislation, to grant to retired property owners relieffrom the property tax on the real property occupied as a residence by those owners. The legislature may place such restrictions and conditions upon the granting ofsuch relief as it shall deem proper. Such restrictions and conditions may include, but are not limited to, the limiting ofthe reliefto those property owners below a specific level ofincome and those fulfilling certain minimum residential requirements.

The legislature has exercised this power by exempting qualifying retired property

owners from paying excess levies, and allowing the regular property tax rate to be less

than full market value oftheir primary residence depending on their income. RCW

84.36.38l(5)(a)-(b),(6); WAC 458-16A-140(2). The exemption applies to all

property taxes, regardless of whether they are imposed by the State or by a local

taxing jurisdiction. See generally RCW 84.36.381.

A supermajority of voters must approve "excess" levies. City ofSpokane v. Horton, No. 93788-5

The Washington Constitution generally vests taxing power in the state

legislature. CONST, art. I, § 1. Municipal corporations have no inherent right to levy

taxes. State ex rel. King County v. State Tax Comm.'n, 174 Wash. 668, 671,26 P.2d

80(1933). However, article VII permits the legislature to delegate tax powers to

municipal corporations. Therefore, a local jurisdiction's taxing authority is derived

from legislative grant specified by the Washington Constitution. CONST, art. VII, § 9.

Article VII, section 9 provides:

The legislature may vest the corporate authorities of cities ... with power to make local improvements by special assessment, or by special taxation of property benefited. For all corporate purposes, all municipal corporations may be vested with authority to assess and collect taxes and such taxes shall be uniform in respect to persons and property within the jurisdiction ofthe body levying the same.

The legislature has granted code cities property tax authority through a number

ofstatutory provisions. Relevant here, RCW 35A.11.020 provides that "[wjithin

constitutional limitations, legislative bodies of code cities shall have within their

territorial limits all powers oftaxation for local purposes except those which are

expressly preempted by the state as provided in RCW 66.08.120, 82.36.440, '

48.14.020, and 48.14.080."(Reviser's note omitted.)RCW 35A.11.030 provides that

such "[pjowers of... taxation" may be exercised "in the manner provided" by Title

35A RCW and the general laws ofthe state. City ofSpokane v. Norton, No. 93788-5

Under the state system, cities and other taxing districts may annually impose

regular property tax levies on real and personal property within their geographic limits

to meet their budgeted government operations. RCW 84.36.005; RCW 84.52.010-

.020. Many constitutional and statutory constraints limit these jurisdictions' taxing

powers. One restriction is the ability to increase regular levies from year to year.

RCW 84.55.010. Under this "levy lid," taxing districts may levy only as much as in

the preceding year plus an amount anticipated for new construction and improvements

to property. If a taxing district wants to exceed the yearly limitation, it may do so by

seeking "levy lid lift" approval from a majority ofits voters. See RCW 84.55.050.

While a levy lid lift allows the taxing district to increase its levy amount, it does not

relieve the taxing district from any ofthe other statutory or constitutional limitations

imposed on regular levies. RCW 84.55.050.

The Court of Appeals held that the City's ordinance was unconstitutional

because it violates the uniformity requirement of article VII, section 9. It held that

the ordinance violates uniformity because it applies two different regular property

tax rates to real property in the city and creates different assessment ratios between

real property owned by its exempted citizens and real property not owned by its

exempted citizens. It further held that section 10 makes clear that only the

legislature may grant exemptions, and that power has not been conferred on

municipal corporations. City ofSpokane v. Horton, No. 93788-5

As stated earlier, article VII, section 9 ofthe Washington Constitution

enables the legislature to vest municipal authorities with the power to tax for local

purposes, subject to conditions and limitations as the constitution or the legislature

may prescribe. Carkonen v. Williams, 76 Wn.2d 617, 627, 458 P.2d 280(1969).

The legislature exercised this authority when it prescribed code cities all powers of

taxation "within constitutional limitations," RCW 35A.11.020, and "in the manner

provided" by state law. RCW 35A.11.030.

The City argues that RCW 35A.11.020's broad delegation of"all powers of

taxation" includes the power to exempt. It argues that "within constitutional

limitations" cannot be interpreted to limit "all powers oftaxation" to only the power

to assess and collect. The City does not dispute that the levy lid lift is subject to

uniformity requirements generally, but that perfect uniformity is not required under

the constitution. Relying heavily on Town ofTekoa v. Reilly, 47 Wash. 202,208,91 P.

769(1907){Tekoa), the City argues that municipalities have the authority to grant

reasonable tax exemptions that promote the "general welfare ofthe people." Judge

Fearing embraced this argument in his dissent in the Court of Appeals opinion below.

Tekoa involved a case where the plaintiff challenged a local street poll tax,

enacted in 1905, that was assessed only on men between the ages of21 and 50 years.

The poll tax applied based on residency; property ownership was not considered. The City ofSpokane v. Horton, No. 93788-5

plaintiff argued that an exemption granted to women and men under 21 and over 50

rendered the tax nonuniform, in violation of article VII, section 9. In upholding the

tax, this court reasoned that perfect uniformity oftaxation is unattainable, stating that

in adopting the constitution, the people ofthis state

did not propose to send the tax gatherer to the almshouse,the orphan asylum or the nursery, nor did they propose to lay a tax on the inmates of these institutions. In other words,they fully understood that if a street or road poll tax should be imposed, certain classes of persons would of necessity be exempt from the imposition,

Tekoa,47 Wash, at 205.

The court noted that the constitution was "not the beginning oflaw." Tekoa,47

Wash, at 206. It cited preconstitutional territorial law imposing a poll tax that

exempted indigent and mentally disabled persons and noted that the first legislature to

assemble under the state constitution imposed a poll tax with similar exemptions. The

court concluded that had the framers ofthe constitution intended to change the status

quo,they would have expressly said so:

Are all these charter provisions to be held for naught, simply because the constitution contains the general altruistic declaration that taxes shall be uniform with respect to persons and property? Had the framers ofthe constitution been dissatisfied with the existing order ofthings would we not expect to find some more satisfactory evidence oftheir discontent?

Tekoa,47 Wash, at 206-07. Significantly, the opinion stated that local taxes need not

be '"as nearly equal as a mathematical calculation can make them,'" but merely '"as

10 City ofSpokane v. Norton, No. 93788-5

nearly equal as is consistent with the general welfare ofthe people, and an equitable

distribution ofthe public burdens.'" Tekoa,47 Wash, at 208(quoting City of

Faribault v. Misener, 20 Minn. 396, 398(1874)). The court held that the poll tax did

not violate article VII, section 9 ofthe Washington Constitution.

The City argues that Tekoa controls the outcome ofthis case because article

VII, section 9 does not distinguish between poll taxes and property taxes. Judge

Fearing's dissent below goes on to discuss that despite recent case law highlighting

the importance oftax uniformity, no cases have specifically involved express tax

exemptions. The dissent dAQ&Belas v. Kiga, 135 Wn.2d 913,959 P.2d 1037(1998),

as the most analogous case.

Belas involved a state referendum that limited the amount of an assessed

valuation increase per year for rapidly appreciating property. This court invalidated

the referendum on the basis of article VII, section 1, the provision addressing state,

not city, taxation. Under the referendum, a formula established a valuation method

where rapidly appreciating property owners did not pay the same rate for assessed

valuation as other property owners and therefore the burden oftaxation shifted to

owners of property that did not experience large value increases. In Belas, DOR

argued that the value averaging was valid under the legislature's constitutional power

to grant tax exemptions. Unlike article VII, section 9, section 1 states that "[s]uch

property as the legislature may by general laws provide shall be exempt from

11 City ofSpokane v. Horton, No. 93788-5

taxation." This court in Belas reviewed the referendum's history and did not find any

promotional materials describing the referendum as creating a tax exemption.

Therefore, the court concluded that the measure was not a tax exemption.

Significantly, the court noted that exemptions from taxation were permissible under

article VII, section I.

In response to this argument,DOR argues that "within constitutional

limitations" means strict uniformity according to article VII, sections I and 9. The

County and DOR argue that Tekoa is distinguishable from this case because Tekoa

did not involve a property tax, which we have tended to require more or stricter

uniformity. The County argues, and the Court of Appeals majority agreed, that

historically poll taxes and property taxes have been treated differently. The Court of

Appeals cited a law review article that noted two different standards for uniformity

based on property taxes and nonproperty taxes:

From the aspect of classification ofthe subjects oflocal taxation, the effect ofthe uniformity requirement of section nine is not the same in the case oflocal taxes on property as in the case oflocal taxes other than property taxes. As applied to property taxes which local subdivisions are empowered to levy, the "uniformity" required is that stated in section 1, article VII, because this section obviously applies to all taxes on property, whether levied by the state for state purposes or by a county, city, school district, or other subdivision for local purposes.... But as to taxes on persons, which are also within the contemplation ofsection nine, uniformity permits any reasonable classification ofthe subjects of taxation.

12 City ofSpokane v. Horton, No. 93788-5

Alfred E. Harsch & George A. Shipman, The Constitutional Aspects of Washington's

Fiscal Crisis, 33 WASH,L.Rev. 225,263-64(1958)(footnote omitted). Respondents

also assert that our case law supports a distinction between property and poll taxes.^

DOR's Suppl. Br. at 18-19; Suppl. Br. ofResp'ts Spokane County at 8-9.

In addition, the County and DOR note that the taxes in Tekoa were taxes that

the legislature expressly authorized towns to enact. Tekoa,47 Wash, at 203("The

validity ofthe legislative act under which the tax was imposed is the principal

question raised by the appeal."). Here,the legislature has not expressly authorized a

property tax exemption as it existed in Tekoa.

The dissent embraces the City's argument that the limited constitutional

authority for the legislature to enact exemptions, coupled with the reasoning of Tekoa

and the statutory delegation oftaxing authority under RCW 35A.11.020, means that a

city(and each city) possesses the power to enact property tax exemptions. This does

not make sense for several reasons. First, as stated above, Tekoa analyzed a statute

delegating authority to cities to enact a poll tax, which differs constitutionally from

how uniformity requirements apply to property taxes. Second, poll taxes existed

^ See Covell v. City ofSeattle, 127 Wn.2d 874, 890, 905 P.2d 324(1995); MacLaren v. Ferry County, 135 Wash. 517, 520, 238 P. 579(1925); Nipges v. Thornton, 119 Wash. 464,470, 206 P. 17(1922); Thurston County v. Tenino Stone Quarries, Inc., 44 Wash. 351, 354-56, 87 P. 634(1906).

13 City ofSpokane v. Horton, No. 93788-5

before statehood, while the property tax exemption authority at issue here was created

by express constitutional amendment in 1966. The dissent identifies no cases citing

Tekoa as supporting this broad implicit delegation of authority when it comes to

property taxes.

And the dissent's view makes no sense in the context of constitutional

uniformity requirements specific to property taxes. In the dissent's view, evidently,

each city could choose, or not choose, to enact property tax exemptions within the

constitutional limitations and potentially establish different eligibility standards,

which could result in a patchwork system of property tax rules, thereby defeating the

constitutional principles requiring uniformity of property taxes.

We agree with the Court of Appeals that Tekoa does not control. As the Tekoa

court notes, it was significant that the poll tax at issue had preconstitutional roots. A

similar poll tax had been enacted in 1881 in the territorial legislature, which exempted

individuals the poll tax at issue sought to exempt. Here, the City's tax exemption

ordinance lacks a similar history. Prior to the 1966 constitutional amendment that

added article VII, section 10, there were no property exemptions similar to those at

issue here.

14 City ofSpokane v. Horton, No. 93788-5

Statutory interpretation also supports this conclusion. The City argues that

ROW 35A.11.020 grants it all powers oftaxation including exemption power. We

disagree. The delegation ofpowers oftaxation under RCW 35A.11.020 is specific and

limited by the statute's express language. The statute provides that code cities have

powers oftaxation within constitutional limits. It does not, nor could it, expand or

vary the constitution's uniformity requirements. While RCW 35A.11.020 is a grant of

authority, the constitution expressly authorizes only the legislature the authority to

enact an exception to the uniformity requirement. See Const, art. VII, § 10("The

legislature shall have the power ... to grant... relieffrom the property tax."). Absent

the constitutional provision giving the legislature limited authority to establish

exemptions, the uniformity requirement prevents such action. No constitutional

provision similar to article VII, section 10 authorizes a city to grant tax exemptions;

therefore, a city does not possess the power to grant tax exemptions.

We affirm the Court of Appeals and find the ordinance unconstitutional.^

^ The City argues that respondents had no authority to consider the legality of the ordinance and that we should reinstate the writ without deciding whether the ordinance is constitutional. While the ministerial nature of an official's duty is a prerequisite to obtaining a writ of mandamus, it does not compel us to grant a writ. See Brown v. Owen, 165 Wn.2d 706, 724, 206 P.3d 310(2009)(mandamus proper to compel ministerial duty only because "[djirecting the performance of a discretionary duty would 'usurp the authority ofthe coordinate branches of government'"(quoting Walker v. Munro, 124 Wn.2d 402, 410, 879 P.2d 920 (1994))). Even where a duty may exist in statute, we will not compel a state official to facilitate an unconstitutional act, which means the constitutionality of the underlying enactment needs to be addressed. See Dep't ofEcology v. State Fin. Comm., 116 Wn.2d 246, 252, 804 P-2d 1241

15 City ofSpokane v. Norton, No. 93788-5

WE CONCUR:

4 Hid (f7

(1991)(reaching the issue of whether lease-ptirchase agreement violated state constitution's debt limit after deciding that the writ of mandamus was available and proper).

16 City ofSpokane v. Horton, et al.

No. 93788-5

MADSEN,J.(dissenting)—I disagree with the majority's conclusion that the city

of Spokane (City), by exempting senior citizens, disabled veterans, and other low-income

tax payers from a municipal property tax, enacted an unconstitutionally nonuniform tax

and exceeded the taxing power constitutionally granted to municipalities in Washington.

Notably, the majority concludes that Town ofTekoa v. Reilly, 47 Wash. 202, 91 P.

769(1907) does not apply to the facts of this case, and that a municipality may only

impose property taxes that are strictly uniform. However, Tekoa makes clear that taxes

imposed by a municipality, pursuant to article VII, section 9 of the Washington State

Constitution, need not be absolutely uniform so long as the taxes are "as nearly equal as

is consistent with the general welfare of the people." Id. at 208.

Moreover,I disagree with the majority's narrow interpretation ofRCW

35A.11.020, in which the legislature grants code cities "all powers of taxation," subject to

constitutional limitation. In the majority's view, the constitution limits code cities to the

power to assess and collect taxes. However, this interpretation fails to account for article

VII, section 10, which grants the legislature the power to exempt retired property owners

from property tax, and this court's interpretation ofthe uniformity requirement. As we No. 93788-5

held in Tekoa, the power to exempt classes of individuals from property taxes is

constitutional, and the fact that section 10 specifically grants this power to the legislature

is of no significant consequence.

Because I find that the property tax imposed by the City does not violate

uniformity and the City may enact a property tax exemption, it is also necessary to

determine whether the trial court appropriately issued a writ of mandamus. I would hold

that mandamus was an appropriate remedy, and would affinri the trial court's order.

Analysis

In Washington, the threshold issue in assessing the constitutionality of a tax is

whether that tax is applied uniformly. See CONST, art. VII, § 1. Taxes imposed by a

municipality are also subject to the uniformity requirement. Id. § 9.

In Tekoa, the court interpreted the article VII, section 9 unifomiity requirement in

a challenge to the constitutionality of a local poll tax imposed on males between the ages

of 21 and 50 years old. 47 Wash, at 203. The tax explicitly exempted volunteer firemen,

and implicitly exempted any person that was not a male between the ages of 21 and 50

years old. Id. at 203-04. In upholding the constitutionality of this tax, the court focused

its analysis on the uniformity requirement in article VII, section 9, which states, "'[A]ll

municipal corporations may be vested with authority to assess and collect taxes, and such

taxes shall be uniform in respect to persons and property within the jurisdiction ofthe

body levying the same.'" Id. at 203 (emphasis added)(quoting CONST, art. VII, § 9). No. 93788-5

The Tekoa court held that exempting a class from a tax "violates no provision of

the state constitution" if done in a reasonable and proper marmer. Id. at 209. In support

of its holding, the court explained:

"Taxes are to be 'as nearly equal as may be'; not as nearly equal as a mathematical calculation can make them, but as nearly equal as is consistent with the general welfare of the people, and an equitable distribution of the public burdens."

Id. at 208 (quoting City ofFaribault v. Misener, 20 Minn. 396, 398 (1874)). The court

observed that perfect unifonnity is procrustean, unattainable, and a "'baseless dream.'"

Id. at 205, 208 (quoting Edye v. Robertson, 112 U.S. 580, 595, 5 S. Ct. 247, 28 L. Ed. 798

1884)). Tekoa makes clear that the legislature could not have intended the inequitable

results that surely would flow from strict tax uniformity. Id. at 208("'The constitution

does not require a theoretical equality at the expense of substantial equity....[T]he

legislature must deviate to some extent.'"(quoting Misener, 20 Minn, at 398-99)).

I would apply the holding in Tekoa that a reasonable exemption does not violate

the uniformity requirement of article VII, section 9, to the tax enacted by the City.

Interestingly, the majority concedes that "absolute uniformity is not required," yet

reaches the opposite conclusion in this case. Majority at 6. The majority argues that

Tekoa does not apply by distinguishing the tax in Tekoa, a poll tax, from the tax here, a

property tax.'

'The majority is confused by Tekoa''s application in this case. This is unsurprising as the majority is so focused on Tekoa's irrelevant distinguishing facts that it fails to comprehend Tekoa's relevant precedential value. Specifically, the majority states: No. 93788-5

This is unpersuasive. I agree with the general proposition that property taxes are

dissimilar from poll taxes in some ways. However,the inherent differences between

property taxes and poll taxes is not the issue. Rather, the issue is whether property taxes

and poll taxes are treated differently with respect to the uniformity requirement in article

VII, section 9. Tekoa focused its analysis on interpreting the uniformity requirement in

article VII, section 9, which applies to both personal and property taxes. Moreover, there

is no indication that the court limited its interpretation of article VII, section 9 to apply

only to poll taxes. To that end, Tekoa answers in the negative, and the majority offers no

case that overrules, either explicitly or sub silentio, that court's "reasonable uniformity"

requirement. I see no reason to deviate from the analysis in Tekoa.

Despite Tekoa's general proposition that a reasonable tax exemption does not

destroy uniformity, the majority further concludes that the City, as a municipality, has no

constitutional power to enact a tax exemption. The City must possess the statutory and

constitutional right to enact property tax exemptions.

Tekoa analyzed a statute delegating authority to cities to enact a poll tax, which differs constitutionally from how uniformity requirements apply to property taxes. Second, poll taxes existed before statehood, while the property tax exemption authority at issue here was created by express constitutional amendment in 1966. Majority at 13-14. Tekoa is controlling because it defines "uniformity" under article VII, section 9, which is the same constitutional provision at issue here. While the majority's position latches onto the fact that Tekoa involved poll taxes rather than property taxes, section 9's plain text does not make any distinction between the two with regard to imiformity. Finally, the majority attempts to discredit Tekoa by stating,"The dissent identifies no cases citing Tekoa as supporting this broad implicit delegation of authority when it comes to property taxes." Id. at 14. The precedential value of our cases are not contingent on citation in subsequent cases. Indeed, this court's decisions are controlling unless they have been subsequently overruled. Tekoa has endured no such negative treatment. No. 93788-5

RCW 35A.11.020 states,

[wjithin constitutional limitations, legislative bodies of code cities shall have within their territorial limits all powers oftaxation for local purposes.

(Emphasis added.) The majority reads "within constitutional limitations" narrowly and

concludes that because a municipality's power to exempt taxes is not expressly provided

in the constitution, it must be a limitation on code cities. The majority points to article

VII, section 10, which states that the legislature has the power to "to grant to retired

property owners relief from the property tax on the real property occupied as a residence

by those owners." CONST, art. VII, § 10. Because section 10 specifically mentions that

the legislature holds the exemption power, and no provision in the constitution explicitly

grants municipalities a similar power, the majority believes that property tax exemptions

are an exclusive power of the legislature.

However, the legislature did not intend such a narrow reading ofthis statutory

provision. Indeed, the legislature delegated authority to designated cities in the broadest

possible terms.

The purpose and policy of this title is to confer upon two optional classes of cities created hereby the broadest powers of local self-government consistent with the Constitution ofthis state.... All grants of municipal power to municipalities electing to be governed under the provisions of this title, whether the grant is in specific terms or in general terms, shall be liberally construed in favor of the municipality.

RCW 35A.01.010. Following the exhortation of liberal construction, as the legislature

intended, we find "within constitutional limitations" must be interpreted to include all

constitutional acts, not just those explicitly granted to municipalities. The power to No. 93788-5

exempt certain individuals from property taxes is constitutional—article VII, section 10

grants that authority to the legislature, and nothing in the constitution prohibits the

legislature from delegating its section 10 exemption power.

By granting "all powers of taxation"^ to code cities, the legislature's intent is

clear—code cities are to have all taxing powers at the local level that the legislature

possesses at the state level. The City persuasively argues this point by demonstrating that

the legislature's intent has historically been clear when granting taxing authority to the

various classes of cities. See Suppl. Br. of Pet'r at 12. For example, the legislature

specifically grants second-class cities the power to assess, levy, and collect property

taxes. RCW 35.23.440(46). An unclassified city is granted the authority to levy and

collect property taxes. RCW 35.30.010(3).

Unlike second-class and unclassified cities, the legislature does not limit a code

city's taxing power. Rather, the legislature intended to grant code cities all powers of

taxation at the local level that the legislature possessed at the state level—including the

power to exempt property taxes.

Moreover, narrowly interpreting "within constitutional limitations" to mean that

code cities enjoy only the power to assess and collect taxes conflicts with Tekoa. Tekoa's

general proposition was that taxes need not be strictly uniform, and that exemptions are

constitutional if enacted to avoid unjust or inequitable results. By narrowly reading RCW

35.30.020, the majority reduces a city's authority to assessing and collecting property

2 RCW 35A.11.020. No. 93788-5

taxes, and strict uniformity becomes inevitable. But in order to assess and eolleet taxes

with "reasonable uniformity," as Tekoa recognized, the power to exempt certain classes

of individuals from property taxes consistent with the general welfare ofthe people and

to avoid injustice is inherent. The majority appears to believe that a municipality has the

power to provide exemptions to all types of taxes except for property taxes.

I disagree with the majority, and would hold that the City has the constitutional

and statutory right to exempt certain classes of individuals from property taxes.

Finally, I would hold that a writ of mandamus was an appropriate remedy in this

case, and I would reinstate the trial court's writ. A writ of mandamus is appropriate if

three elements are met:

(1)the party subject to the writ is under a clear duty to act,(2)the applicant has no "plain, speedy and adequate remedy in the ordinary course oflaw," and (3)the applicant is "beneficially interested."

Eugster v. City ofSpokane, 118 Wn. App. 383, 402, 76 P.3d 741 (2003)(citations

omitted)(quoting RCW 7.16.170). The trial court found that the City established each

element. See Clerk's Papers at 481.

First, the party subject to the writ must have a "clear duty to act." Eugster, 118

Wn. App at 402. Specifically, this element requires a ministerial duty—a duty that vests

no independent discretion or judgment in the party subject to the writ. SEIUHealthcare

775NWV. Gregoire, 168 Wn.2d 593, 599, 229 P.3d 774(2010).

Here, the respondents, Vicki Horton and Rob Chase, are subject to the writ in their

respective capacities as Spokane County assessor and Spokane County treasurer. No. 93788-5

Pursuant to State el rel. Godfrey v. Turner, a county treasurer is a "subordinate

ministerial officer who has no discretion, but must perfonn the duty of collecting taxes as

they are certified to him by the assessment roll placed in his hands for collection." 113

Wash. 214, 219, 193 P. 715 (1920); RCW 36.29.100 ("All special assessments and

special taxation for local improvements assessed on property benefited shall be collected

by the city treasurer."). Moreover,"[t]he action ofthe assessor in setting rates is

primarily ministerial." Hoppe v. King County, 95 Wn.2d 332, 338,622 P.2d 845 (1980).

Consequently, Horton and Chase are under a clear duty to perform their ministerial

functions—^Horton must assess the tax rates, and Chase must collect taxes pursuant to

those assessments. Neither Horton nor Chase may exercise any diseretion or judgment in

the administration of their respective duties.

The second element required for mandamus is that no alternative "'plain, speedy,

and adequate remedy in the ordinary course ofthe law'" exists. Eugster, 118 Wn. App.

at 403 (quoting River Park Square, LLC v. Miggins, 143 Wn.2d 68, 76, 17 P.3d 1178

(2001)). In other words, mandamus will not lie if the party requesting the writ has an

alternative and adequate remedy besides mandamus. Gregoire, 168 Wn.2d at 625.

However for a remedy to be considered inadequate "'[tjhere must be something in the

nature of the action or proceeding that makes it apparent to this court that it will not be

able to protect the rights of the litigants or afford them adequate redress, otherwise than

through the exercise of this extraordinary jurisdiction.'" Id.(internal quotation marks No. 93788-5

omitted)(quoting State ex rel. O'Brien v. Police Court, 14 Wn.2d 340, 347-48, 128 P.2d

332(1942)).

Horton and Chase argue that the City did have an adequate alternative remedy—a

declaratory judgment pursuant to chapter 7.24 RCW,the Uniform Declaratory Judgment

Act(UDJA). Under the UDJA,a "declaratory judgment" is an order that establishes the

"rights, status and other legal relations whether or not further relief is or could be

claimed." RCW 7.24.010. In contrast, a "writ of mandamus" is an order compelling

performance of a public official's existing duties. Walker v. Munro, 124 Wn.2d 402, 408,

879 P.2d 920(1994). What Horton and Chase fail to recognize is that an "ordinance will

be presumed to be constitutional, and the burden ofshowing otherwise rests heavily upon

the challenger." Homes Unlimited, Inc. v. City ofSeattle, 90 Wn.2d 154, 158, 579 P.2d

1331 (1978).

Here, the City passed an ordinance exempting certain individuals from a local

property tax. Horton and Chase refused to assess and collect property taxes in accord

with the City's ordinance. Appropriately, the City requested a writ of mandamus from

the trial court in order to compel Horton and Chase to comply with the City's ordinance

and to perform their assessment and collection duties. The City correctly did not request

a declaratory judgment because the City's ordinance is presumed constitutional, and a

declaration of constitutionality is not a prerequisite to obtaining a writ of mandamus. The

City sought a remedy to compel Horton and Chase to comply with their ministerial

duties, not establish the constitutionality of its ordinance. Unlike a writ of mandamus, a No. 93788-5

declaratory judgment does not directly compel perfonnance, which is the remedy sought

by the City.

Additionally, the issue of constitutionality was raised as a defense to the "duty"

element required for a writ of mandamus. Requiring a declaratory judgment every time

the constitutionality of a statute is asserted as a defense would severely restrict parties

from obtaining mandamus in the future. In effect, parties would be required to seek

declaratory judgment regarding constitutionality of underlying issues as a threshold

determination before they may request a writ of mandamus from the court. A declaratory

judgment does not constitute an adequate alternative remedy.

The third element requires that the party requesting mandamus be "beneficially

interested." Here, the City implemented the ordinance that Horton and Chase refuse to

comply with. As such, the City has a beneficial interest in ensuring that public officials,

burdened with the task ofimplementing legislation, do, in fact, implement the City's

legislative acts.

Because I would hold that the City's ordinance is constitutional and that

mandamus is an appropriate remedy,I would affirm the trial court. Accordingly, I

respectfully dissent.

10 No. 93788-5