State ex rel. Heavey v. Murphy

• Decision Date: 26 August 1999
• Docket Number: No. 67692-5.,67692-5.
• Citation: 982 P.2d 611,138 Wash.2d 800
• Parties: STATE of Washington, on the Relation of Michael J. HEAVEY, Petitioner, v. Michael J. MURPHY, Washington State Treasurer, Respondent.
• Court: Washington Supreme Court

982 P.2d 611

138 Wash.2d 800

STATE of Washington, on the Relation of Michael J. HEAVEY, Petitioner, v. Michael J. MURPHY, Washington State Treasurer, Respondent.

No. 67692-5.

Supreme Court of Washington, En Banc.

Argued June 17, 1999.

Decided August 26, 1999.

Foster, Pepper, Shefelman, Michael K. Vaska, David Utevsky, Seattle, Swanson, Parr, Cordes, Younglove & Peeples, Edward E. Younglove, Anita L. Hunter, Olympia, Jerry L. Painter, Federal Way, For Amicus Curiae.

Michael J. Heavy, Bellevue, for Petitioner.

Christine Gregoire, Atty. Gen., David E. Walsh, Asst., Narda Pierce, Solicitor General, Michael Murphy, Washington State Treasurer, Olympia, for Respondent.

ALEXANDER, J.

Michael J. Heavey seeks a writ of mandamus prohibiting state Treasurer Michael J. Murphy from complying with RCW 82.44.110, as last amended by Referendum 49 (Laws of 1998, ch. 321, § 5). He argues that the statute violates Const. art. II, § 40 (amend.18) in that it requires the treasurer to deposit motor vehicle excise tax (MVET) revenues into the state's motor vehicle fund. Heavey initially requested that the attorney general initiate this action. The attorney general declined his invitation, choosing instead to defend Referendum 49's constitutionality. Heavey thereafter commenced this action against the treasurer in this court. In light of the stipulation to facts, and the significance of the issue involved, we agreed to exercise our original jurisdiction and determine if a writ of mandamus should issue against a state officer, the Washington state treasurer.

FACTS

The facts recited hereafter are based upon the stipulation to facts between the parties. Const. art. II, § 40 (amend.18) was submitted to the voters by the Legislature as House Joint Resolution 4. It was adopted during the 1944 general election as the eighteenth amendment to the state constitution. Referendum 49 was submitted to the voters by the Legislature and adopted in the November 1998 general election. Fifty-seven percent of the persons voting on the referendum voted in favor of it.

In December 1998, Heavey, a Washington resident and taxpayer, wrote a letter to Attorney General Christine Gregoire requesting that she initiate legal action to invalidate a section of Referendum 49, now embodied in RCW 82.44.110, on the basis that it violated Const. art. II, § 40 (amend.18). Heavey contended that a provision of Const. art. II, § 40 (amend.18) prohibited an act required by Referendum 49: the deposit of MVET revenue into the state's motor vehicle fund. In response to Heavey's request, a representative of the attorney general indicated that the attorney general would defend Referendum 49's constitutionality. The attorney general's position was that while Const. art. II, § 40 (amend.18) does not require MVET revenue to be deposited in the motor vehicle fund, it does not preclude deposit of this revenue into the fund.

Faced with this response, Heavey commenced this original action against Treasurer Murphy in our court upon stipulated facts. We agreed to decide the case. See Const. art. IV, § 4; RAP 16.2. We also granted leave to the Washington Federation of State Employees and the Washington Education Association, siding with Heavey, and the Washington State Building and Construction Trades Council, the AFL-CIO, the Greater Seattle Chamber of Commerce, the Associated General Contractors of Washington, Snohomish County Committee for Improved Transportation, the Spokane Area Chamber of Commerce, and the Washington Public Ports Association, siding with Treasurer Murphy, to file amici curiae briefs.

ANALYSIS

Of the writ of mandamus, we have noted that "[a]rticle 4, section 4 of the state constitution gives this court original jurisdiction in mandamus as to all state officers. That jurisdiction is, however, nonexclusive and discretionary." Department of Ecology v. State Fin. Comm., 116 Wash.2d 246, 251, 804 P.2d 1241 (1991) (citing Holt v. Morris, 84 Wash.2d 841, 845-46, 529 P.2d 1081 (1974), overruled on other grounds by Wright v. Morris, 85 Wash.2d 899, 540 P.2d 893 (1975)

). We have written that "[w]here ... the issues involve the constitutionality of a statute and matters relating to the expenditure of public funds, it is appropriate for us to exercise our original jurisdiction." State Fin. Comm.,

116 Wash.2d at 251,

804 P.2d 1241 (citing City of Tacoma v. O'Brien, 85 Wash.2d 266, 268, 534 P.2d 114 (1975)). In light of the stipulation to facts between the parties, making it unnecessary for us to refer questions of fact in this case to a special master or to the superior court, see RAP 16.2(d), we believe this is an appropriate case in which to exercise our original jurisdiction.

Under the challenged section of Referendum 49 that amends RCW 82.44.110, the distribution of MVET revenue into various accounts is provided for, and this is Murphy's responsibility: "The state treasurer shall deposit the excise taxes collected under RCW 82.44.020(1) as follows...." Laws of 1998, ch. 321, § 5(1). While we have written that "[a] writ of mandamus will not issue where the act to be performed is a discretionary act[,]" State Fin. Comm., 116 Wash.2d at 251, 804 P.2d 1241 (citing Peterson v. Department of Ecology, 92 Wash.2d 306, 314, 596 P.2d 285 (1979)), the use of the word "shall" makes it clear that Murphy is charged with a mandatory duty. See State Fin. Comm., 116 Wash.2d at 252, 804 P.2d 1241 (citing Spokane County ex rel. Sullivan v. Glover, 2 Wash.2d 162, 169, 97 P.2d 628 (1940)). Thus mandamus is an appropriate remedy, and we, therefore, must determine if the writ should issue.

Heavey's primary argument is that RCW 82.44.110, as most recently amended by Referendum 49, violates Const. art. II, § 40 (amend.18) by requiring MVET revenue to be deposited into the motor vehicle fund. Thus, he contends that "[m]andamus should issue prohibiting the state treasurer from depositing into the motor vehicle fund any portion of the motor vehicle excise tax imposed by RCW 82.44.020." Pet'r's Br. at 48 (emphasis added). RCW 82.44.020(1) provides that "[a]n excise tax is imposed for the privilege of using in the state any motor vehicle, except those operated under reciprocal agreements, the provisions of RCW 46.16.160, or dealer's licenses. The annual amount of such excise tax shall be two and two-tenths percent of the value of such vehicle." This tax is perhaps best known by what one receives in exchange for paying it: motor vehicle license tabs.

Although deposits of MVET revenue into the motor vehicle fund under RCW 82.44.110 actually predate the passage of Referendum 49, the referendum amended RCW 82.44.110 by altering the percentage of this revenue to be deposited into the motor vehicle fund.¹ Prior to passage of the referendum, 13.82% of the MVET revenue was deposited into the motor vehicle fund. See Laws of 1998, ch. 321, § 5(1)(a)-(c). Passage of the referendum had the effect of increasing the deposit into the fund to 21.426% of the MVET revenue through June 30, 1999, and then to 25.195% thereafter. See Laws of 1998, ch. 321, § 5(1)(a)-(c), (m). Under Heavey's argument, the amount of the increase is irrelevant — for he contends that not even a penny's worth of MVET revenue can be deposited in the motor vehicle fund.

As noted above, Heavey's contention is that RCW 82.44.110, as amended by Referendum 49, runs afoul of Const. art. II, § 40 (amend.18). The constitutional provision is as follows:

HIGHWAY FUNDS. All fees collected by the State of Washington as license fees for motor vehicles and all excise taxes collected by the State of Washington on the sale, distribution or use of motor vehicle fuel and all other state revenue intended to be used for highway purposes, shall be paid into the state treasury and placed in a special fund to be used exclusively for highway purposes. Such highway purposes shall be construed to include the following:

(a) The necessary operating, engineering and legal expenses connected with the administration of public highways, county roads and city streets;

(b) The construction, reconstruction, maintenance, repair, and betterment of public highways, county roads, bridges and city streets; including the cost and expense of (1) acquisition of rights-of-way, (2) installing, maintaining and operating traffic signs and signal lights, (3) policing by the state of public highways, (4) operation of movable span bridges, (5) operation of ferries which are a part of any public highway, county road, or city street;

(c) The payment or refunding of any obligation of the State of Washington, or any political subdivision thereof, for which any of the revenues described in section 1 may have been legally pledged prior to the effective date of this act;

(d) Refunds authorized by law for taxes paid on motor vehicle fuels;

(e) The cost of collection of any revenues described in this section:

Provided, That this section shall not be construed to include revenue from general or special taxes or excises not levied primarily for highway purposes, or apply to vehicle operator's license fees or any excise tax imposed on motor vehicles or the use thereof in lieu of a property tax thereon, or fees for certificates of ownership of motor vehicles.

It is undisputed that the "special fund" referred to in the first sentence of Const. art. II, § 40 (amend.18) is the motor vehicle fund. See Automobile Club v. City of Seattle, 55 Wash.2d 161, 166, 346 P.2d 695 (1959)

; RCW 46.68.070. This case turns on the meaning of the following words in the proviso to Const. art II, § 40: "[T]his section shall not be construed to ... apply to ... any excise tax imposed on motor vehicles or the use thereof in lieu of a property tax thereon...." There is no dispute over the fact that these words encompass the present-day MVET.² The dispute arises over whether this proviso means that the motor vehicle fund can or cannot include MVET revenue. Heavey argues that it cannot, and Murphy contends...