Dore v. Kinnear

489 P.2d 898, 79 Wash. 2d 755, 1971 Wash. LEXIS 649

• Court: Washington Supreme Court
• Decided: October 14, 1971
• Docket: 41783
• Status: Published

Opinions

Hunter, J.

This is an action by the plaintiffs (appellants), as residents and taxpayers in King County on behalf of themselves and other taxpayers similarly situated, seeking a permanent injunction restraining the defendants (respondents), the Washington State Director of Revenue, the King County Assessor, the King County Executive and the King County Board of Equalization, from placing the assessed values obtained by a revaluation of the plaintiffs’ property on the King County assessment rolls for the payment of real property taxes for the year 1971.

On September 2, 1969, the director of the Department of Revenue entered into a contract with John Spellman, King County Executive, for appraisal funds appropriated by the state, Laws of 1969, Ex. Ses., ch. 282, § 4, p. 2745; Laws of 1970, Ex. Ses., ch. 95, § 1, p. 736, for the purpose of undertaking a comprehensive revaluation of real property in Kong County over a 4-year period.

The program provided that for each of the 4 years, approximately 25 per cent of the 450,000 parcels of real property located in King County would be revalued and placed upon the assessment rolls. The detailed plan provided that approximately 90,000 parcels in King County in the area bounded by the Snohomish-King County line on the north, Lake Washington Ship Canal on the south, Lake-Washington on the east and Puget Sound on the west, would be revalued and placed upon the assessment rolls for the first year of the 4-year cycle.

A contract for appraisals was entered into with the Jacobs Company, Inc., an Illinois corporation, to appraise approximately 70,000 parcels of property during the first year, and the remaining 20,000 parcels located in the Shoreline school district were to be appraised by the King County Assessor’s staff.

By May 31, 1970, the Jacobs Company, Inc. had completed appraisals on 27,000 parcels out of its total of 70,000. The King County Assessor’s office placed these new values on the assessment rolls for the purpose of taxes payable in 1971. As of the same date appraisers on the King County Assessor’s staff had completed appraisals of the buildings and improvements on 7,000 parcels located in the Shoreline school district, but had not appraised the land. The new values for these buildings and improvements were not placed on the assessment rolls for taxes payable in 1971.

The contentions of the plaintiffs, which we deem critical to the disposition of the case, are that the revaluation of only 27,000 parcels and placing them on the 1971 assessment rolls, was a failure of compliance with the 4-year cyclical revaluation program as directed by the legislature in RCW 84.41.030; that the actions of the King County Assessor were arbitrary and capricious and grossly discriminatory, and were therefore in contravention of the equal protection clauses of the federal and state constitutions (U.S. Const, amend. 14; Const, art. 1, § 12), as well as the uniformity provisions of the fourteenth amendment to the state constitution, and that this increased tax on their property, resulting from the revaluation, was void. They therefore brought this action to restrain the county from its collection. The trial court ruled in favor of the defendants, thus denying the plaintiffs the relief they sought. This appeal followed.

On March 3, 1971, the plaintiffs filed a motion in this court for a temporary injunction, pending the resolution of this appeal, to restrain the defendants from collecting the increased tax for the year of 1971, by reason of the revaluation of the 27,000 parcels owned by these plaintiffs. This relief was granted by this court in its order dated March 29,1971.

In this appeal now before us on the merits, it is the defendants’ position that the conduct of the county assessor was not intentionally discriminatory, and that a revision of the appraisal program will be made to include all the property in King County in the remaining 3 years of the cyclical period; that this, in effect, would cure any deviation that has taken place during the first year of the cycle. We disagree with this rationale.

The legislature has vested in county authorities the power and duty to list, appraise, and assess all taxable property within the county, and to levy and collect all such property taxes. These responsibilities are not vested in the county authorities without conditions and limitations which they are compelled to follow. We have repeatedly held that county authorities are totally dependent upon the legislature for any power which they may exercise in the assessing and levying of taxes. State ex rel. School Dist. 37 v. Clark County, 177 Wash. 314, 31 P.2d 897 (1934); Great Northern Ry. v. Stevens County, 108 Wash. 238, 183 P. 65 (1919).

In the instant case, the county assessors are directed to maintain a systematic and continuous 4-year cyclical revaluation program as prescribed by the legislature in RCW 84.41.030. This statute provides as follows:

Each county assessor shall commence, immediately if possible, but no later than January 1, 1956, a comprehensive program of revaluation of all taxable property within his. respective county. Such program shall progress at a rate which will result in the revaluation of all taxable property within the county before June 1, 1958. Each assessor shall thereafter maintain an active and systematic program of revaluation on a continuous basis, and shall establish a revaluation schedule which will result in revaluation of all taxable property within the county at least once each four years. A copy of such schedule shall be filed by each assessor with the tax commission before October 15,1956.

(Italics ours.)

In 1969 the legislature, recognizing the inequalities in the revaluation programs, passed a general appropriation act making funds available to the county assessors. Pursuant to the requirements of Laws of 1969, Ex. Ses., ch. 282, § 4, p. 2745, the King County Assessor submitted a comprehensive revaluation plan to the Department of Revenue in order that King County may qualify for funding of the revaluation program. The purpose of the funds was to assist the assessor in maintaining a systematic revaluation program as required by RCW 84.41.030, supra. The memorandum of agreement entered into between the Washington State Department of Revenue and King County on September 2, 1969, sets forth the purpose of the grant:

Whereas, It has been determined that the County does not have sufficient resources to effectively carry out its obligation under Chapter 84.41 RCyV, to revalue real property within its boundaries for ad valorem tax purposes, and

Whereas, The Legislature of the State of Washington has provided the Department of Revenue with funds to aid counties in revaluation programs, . . .

The revaluation program initiated in 1969 by the King County Assessor with state funding was an apparent attempt to comply with RCW 84.41.030, supra. However, the implementation of the program lacked any resemblance of a comprehensive, systematic, and continuous revaluation program.

As previously discussed in the facts, the revaluation of the 90,000 parcels in phase one of the program was to be a joint effort of the Jacobs Company, Inc. and the King County Assessor’s office, with the latter responsible for revaluing 20,000 parcels in the Shoreline school district. The record reveals that the assessor had only four or five appraisers out of his 60-member staff working in the Shoreline area prior to May 31, 1970. Revaluations on buildings and improvements were completed on 7,000 parcels with no final values, including land and buildings together, being established. The assessor refrained from placing these new values as to buildings and improvements on the 1970 assessment rolls for 1971 taxes. During this same period, prior to May 31,1970, the assessor’s office revalued the land only on 22,000 parcels, and placed these new values on the 1970 assessment rolls. These parcels were located outside of the phase one area and were not valued pursuant to the new revaluation program; however, these same parcels were to be revalued in subsequent phases of the new program. The explanation for this work was that the assessor’s office was attempting to update their old cycle and programs.

The contract between the Jacobs Company, Inc. and King County for the revaluation of 70,000 of the 90,000 parcels in phase one of the program was entered into on October 14, 1969. The contract provided that the first year phase of the revaluation program was to be completed in less than 3 months by December 31, 1969. However, on October 23,1969, 9 days after the contract was entered into, a work plan was added to the contract dividing the 70,000 parcels into two parts so that the Jacobs Company, Inc. would revalue only 40,000 parcels by April 30, 1970, and the remainder of the 70,000 parcels by December 31, 1970, of which 30,000 parcels would not be eligible for placement on the 1971 tax rolls. The language of the revision is as follows:

Completion Schedule

The completion schedule of work within the Phase I Project Area will be staggered by Parts A and B, west and east of the Seattle Freeway, as follows:

Part A — West of Freeway — all appraisal work in this part of the Phase I Project area will be completed and delivered to the County Assessor May 15, 1970 with new and remodeled structures appraised as of April 30, 1970. Testimony on Part A appraisal before the King County Board of Equalization will be given starting July 1,1970.

Part B — East of Freeway — all appraisal work in this part of the Phase I Project area will be completed by December 31, 1970 with the exception that new buildings or buildings altered or remodeled shall be reappraised as of April 30, 1971 and these up-dated appraisals shall be delivered to the County Assessor by May 15, 1971. Testimony on Part B appraisals before the King County Board of Equalization will be given starting July 1, 1971.

As of May 31, 1970, the date by which the new revaluations must have been completed in order to be placed on the tax rolls for the year of 1971, the Jacobs Company, Inc. had completed only 27,000 parcels.

The record further shows that under the agreement with the Washington State Department of Revenue, dated September 2, 1969, the work of phase one was not required to be completed until June 30, 1971. This agreement provided, in part, as follows:

1. Eligibility for Grant Assistance. The Department agrees to certify to the State Treasurer that the County is eligible for grant assistance and shall be compensated the total sum of $1,091,379.00 or any portion thereof for the satisfactory performance of the work set forth in the Implementation of Project Area I of the plan for revaluation as submitted by the County and approved by the Department on September 2, 1969, and any other area that may be contracted for within the allowable funds.

. 2. Time of Performance. It is expressly agreed and understood that the amount set forth in section I above shall constitute the total compensation for the work so described and that said work shall be completed on or before June 30,1971.

It is an inescapable conclusion from the above record that from the beginning of the implementation of the first phase of the 4-year cyclical program the assessor knew he could not complete the first phase of the revaluation program prior to May 30, 1970; that he was not required by his agreement with the Department of Revenue to complete the first phase of the revaluation program by May 30, 1970, and that he did not intend to conform with the first-year phase of the program, but planned on completing the revaluation of a greater percentage of the parcels in phase one after May 30, 1970, placing them on the assessment rolls for tax purposes for the year of 1972 rather than 1971.

This conclusion is further unassailable by reason of the assessor’s failure to revalue and place even one of the remaining 20,000 parcels on the assessment rolls for 1971 taxes as provided in the first phase of the plan.

The plan in effect was converted to a 3-year plan for the revaluation of 94 per cent of the remaining taxable parcels of King County. If the cyclical period is to be converted to a 3-year cycle for the owners of 94 per cent of the taxable parcels, as the record now shows, it would appear the plaintiff owners of 6 per cent of the parcels should receive like treatment. Therefore, by placing the 27,000 parcels in phase one on the 1971 assessment rolls instead of the 1972 assessment rolls, as will be the case of the remaining 90,000 parcels in the area of phase one, constituted unequal treatment to the taxpayers in the phase one area.

Such willful departure from the systematic plan by the county assessor was completely out of harmony with the fundamental purpose of chapter 84.41. This purpose is clearly defined in RCW 84.41.010 which declares in part:

Traditional public policy of the state has vested large measure of control in matters of property valuation in county government, and the state hereby declares its purpose to continue such policy. However, present statutes and practices thereunder have failed to achieve the measure of uniformity required by the Constitution; the resultant widespread inequality and nonuniformity in valuation of property can and should no longer he tolerated. It thus becomes necessary to require general revaluation of property throughout the state.

In Carkonen v. Williams, 76 Wn.2d 617, 633, 458 P.2d 280 (1969), we stated the requirements of a cyclical program essential to constitutional standards:

In keeping with the import of the Sunday Lake decision [Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350, 62 L. Ed. 1154, 38 S. Ct. 495 (1918)], state courts which have considered cyclical revaluation programs have generally found them to be compatible with constitutional equal protection and uniformity provisions, provided they he carried out systematically and without intentional discrimination.

(Italics ours.) We therein held that in view of the manpower and budgetary problems the assessors were endeavoring to pursue a systematic, nondiscriminatory cyclical approach to revaluation. The facts peculiar to the instant case are incompatible with those facts controlling our decision in the Carkonen case, and therefore cannot support a similar holding.

Thus, where a cyclical program of revaluation is undertaken, a systematic and consistent program of revaluation must be maintained during each year of the cyclical period in a county. This would require that substantially an equal amount of taxable property in a county be revalued in each year of the cyclical program in order that all taxpayers receive the same treatment within the cyclical period to avoid derogation of the equal protection clauses of our federal and state constitutions and the uniformity of taxation clauses of our state constitution.

This piecemeal revaluation has resulted in gross discrimination against the owners of these 27,000 parcels and is reflected not only in the higher taxes on their property for a longer period of time within the cyclical period than against the other taxpayers of the county not revalued, but also could result in a disproportionate millage on their property to which other property in the county not revalued will not be subjected during the cyclical period.

The millage to be levied by the county each year is dependent upon the revenues needed to meet the expenditures of the county, and other tax districts therein for that year. RCW 84.52.010; RCW 84.41.050. The failure of the county assessor to revalue more than approximately 6 per cent of the taxable property in King County for the first cycle of the 4-year period would require a higher millage than would have otherwise been required had a systematic revaluation of substantially 25 per cent of the taxable county property been made for that year. This would place an additional disproportionate burden upon the owners of the 27,000 parcels of property as compared to the other taxpayers of King County whose property had not been revalued, and which would not be equalized within the 4-year cycle and subsequent 4-year cyclical periods' as contemplated by RCW 84.41.030, supra.

The legislature was cognizant of this evil and specifically declared this to be one of the reasons why the county assessors must establish and maintain systematic and continuous revaluation programs. Again, RCW 84.41.010 provides in part as follows:

Serious nonuniformity in valuations exists both between similar property within the various taxing districts and between general levels of valuation of the various counties. Such nonuniformity results in inequality in taxation contrary to standards of fairness and uniformity required and established by the Constitution and is of such flagrant and widespread occurrence as to constitute a grave emergency adversely affecting state and local government and the welfare of all the people.

The defendants cite Sunday Lake Iron Co. v. Wake-field, 247 U.S. 350, 62 L. Ed. 1154, 38 S. Ct. 495 (1918), in support of their theory that the revising of the program to include the omitted property in the remaining 3 years of the 4-year cyclical period, would rectify the inequities. This case is not apposite; it involved an erroneous assessment of only one parcel of property by an inexperienced member of the assessor’s staff and no bad faith was involved, and it was not related to a cyclical program. Other cases cited by counsel did not involve a willful departure from a cyclical program.

In the instant case, we cannot ignore the rights of the complaining taxpayers on the basis that the inequities will be immediately rectified. The actions of the King County Assessor did not substantially comply with any systematic and comprehensive revaluation program as heretofore stated, and cannot be equalized and rectified within the 4-year cycle or in succeeding cyclical periods.

The county assessor’s revaluation of this small percentage of taxable property in King County placed on the assessment rolls for 1971, the first year of the 4-year cyclical period, was such a radical departure from the programmed plan for revaluation of the taxable property of King County, and was so grossly contrary to the systematic revaluation of taxable property required by the statute, supra, all within the full knowledge of the assessor, that it was inherently arbitrary and capricious conduct. This discriminatory action of the county assessor as to these plaintiffs was in derogation of the equal protection clauses of our federal and state constitutions and the uniformity clause of our state constitution. The increased tax imposed upon these taxpayers, resulting from the revaluation of their property, was therefore void. The judgment of the trial court is reversed, and the county is permanently restrained from the collection of this increased tax for the taxable year of 1971.

The defendants now contend, however, for the first time on appeal, that this is not a class action for the reason that the plaintiff owners of the 27,000 parcels in the phase one area were not given notice under Civil Rules' for Superior Court (CR 23), and are therefore not entitled to relief. This contention is without merit.

At the time this court granted temporary relief to these plaintiffs by the entry of its temporary order restraining the defendants from the collection of the above stated increased tax, pending the resolution of this appeal, no objection was made to our granting this relief to these plaintiffs on the grounds that this was not a class action. We hold the defendants have therefore waived their objection that this case is not a class action. In any event, the record shows that at the inception of this case the Honorable David W. Soukup, presiding judge of the King County Superior Court, granted the plaintiffs’ motion to maintain a class action under CR 23, and ordered the case

pre-assigned to a particular judge and that such judge delineate and set forth the common questions of fact to be resolved in the class action and the form of the notice that should be prescribed, in giving notice to the various members of the class in the affected area.

The undisputed evidence in this record shows this case is a classic class action falling under the following category of CR 23:

(a) . . . One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

(b) . . . An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:

(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

There is no dispute in this case that this is an action for injunctive relief under (b)(2), and the decisive issue in the case affects in common every member of the class.

The notice requirement in CR 23 is found in paragraph (c)(2) and applies to class actions maintained under paragraph (b) (3), and not to class actions which axe maintained under paragraph (b)(2). See 3A L. Orland, Wash. Prac. (2d ed. 1968), at 432 and 433. CR 23 further provides, however, in (d) (2) that the court may require notice “for the protection of the members of the class or otherwise for the fair conduct of the action, . . .” Manifestly, this notice is for the benefit of the members of the class to allow them to object to their inclusion in the case or to be bound by the judgment in the event their rights may in any way be adversely affected. This notice is, at the most, discretionary with the trial judge. See 3A L. Orland, Wash. Prac. (2d ed. 1968), at 441. It is not clear from the. record as to whether the trial judge exercised his discretion, but the record indicates that no formal notice was given.

Under the facts of this case, we hold that the failure to give the above stated formal notice to these plaintiff owners of the 27,000 parcels is in no manner fatal to their class action for the reason that by our disposition of this case, no rights of these plaintiffs have been prejudiced or adversely affected by their being included in this action. We hold this to be a valid class action and that all the plaintiff owners of the 27,000 parcels in phase one of this 4-year cyclical program are entitled to the relief afforded by this decision.

In view of our disposition of this case, we need not discuss the other contentions of the plaintiffs; however, we find them to be without merit.

The $500 bond required by this court in granting the temporary restraining order shall be returned to the party posting the same.

It is so ordered.

Hamilton, C.J., Finley, Rosellini, and Hale, JJ., concur.