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AGO 2014 No. 4 - March 28, 2014
AGO Opinion Header Image
Bob Ferguson | 2013-2016 | Attorney General of Washington

FEES—TOLLS—FERRIES—INITIATIVE AND REFERENDUM—LEGISLATURE— AMENDMENTS—STATUTORY AUTHORITY—TRANSPORTATION COMMISSION —Whether RCW 43.135.055(1) Supersedes The Delegation Of Authority To The Transportation Commission To Set Toll Rates And Ferry Fares

RCW 43.135.055(1), as most recently amended by Initiative 1185 and previously by Initiatives 960 and 1053, does not amend or repeal approval the legislature has granted in other statutes for the imposition or increase of fees, and makes no distinction as to when legislative approval must take place.


March 28, 2014

The Honorable Judy Clibborn
State Representative, District 41
PO Box 40600
Olympia, WA   985o4-0600
  Cite As:
AGO 2014 No. 4


Dear Representative Clibborn:

By letter previously acknowledged, you have requested our opinion on the following paraphrased question:

Without amending the statutory provisions through which the legislature has delegated authority to set toll rates and ferry fares, do the provisions of Initiative 1185 requiring legislative approval of fee increases supersede the delegation of that authority to the Transportation Commission? 


BRIEF ANSWER

    No.  Initiative 1185 simply states that a fee may only be imposed or increased if approved by a majority vote in the legislature.  It does not repeal or amend the hundreds of other statutes in which the legislature has already approved the imposition or increase of fees, and it makes no distinction as to when legislative approval must occur.  Because the legislature has already approved the Transportation Commission’s authority to set toll rates and ferry fares, Initiative 1185 requires no further legislative approval.

BACKGROUND  

    Washington voters approved Initiative 1185 (I-1185) at the November 2012 general election.  One of its provisions amended RCW 43.135.055(1), which generally permits state agencies to impose or increase fees only with legislative approval.  The amendment to RCW 43.135.055 set forth in I-1185 is the latest in a series of similar amendments to this statute.  We accordingly begin by reciting the history of RCW 43.135.055.  We then describe the general


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range of fee-setting authority for state agencies provided by numerous statutes.  Next, because you pose your question with specific regard to toll rates and ferry fares, we provide background regarding the statutory authority delegated to the Transportation Commission to set tolls and fares.

1. History of RCW 43.135.055

    The voters originally enacted RCW 43.135.055 as part of Initiative 601, a measure that established the state expenditure limit and generally addressed state taxes and fees.  Laws of 1994, ch. 2, § 8.  As originally enacted, RCW 43.135.055 limited fee increases based upon the rate of growth in the state expenditure limit.  Laws of 1994, ch. 2, § 8.  Two later amendments by the legislature exempted agricultural and commodity commissions and the forest products commission from this limitation.  Laws of 1997, ch. 303, § 2 (adding subsection (2) to RCW 43.135.055); Laws of 2001, ch. 314, § 19 (amending RCW 43.135.055(2) to add the forest products commission).

    The voters amended RCW 43.135.055 through Initiative 960 (I-960) in 2007, eliminating the limitation on the rate of growth in fees, stating a prohibition against imposing or increasing fees without legislative approval, and adding a provision relating to information on the estimated cost to taxpayers of proposed new fees.  Laws of 2008, ch. 1, § 14.  As amended by I-960, the provision stated that “[n]o fee may be imposed or increased in any fiscal year without prior legislative approval[.]”  Laws of 2008, ch. 1, § 14.  Two later initiatives restated the legislative approval provision.  Initiative 1053 (I-1053) rephrased the provision from the negative to the positive, providing that “[a] fee may only be imposed or increased in any fiscal year if approved with majority legislative approval in both the house of representatives and the senate[.]”  Laws of 2011, ch. 1, § 5.  Initiative 1185 again restated the provision, expressly providing that a “simple majority vote” is sufficient to confer legislative approval.  Laws of 2013, ch. 1, § 4.

    The following table illustrates the history of amendments to RCW 43.135.055(1):

  Amendment   Changes to RCW 43.135.055(1):
  Initiative 601 (1993)
(Laws of 1994, ch. 2, § 8)
 

Original enactment of RCW 43.135.055, reading:

No fee may increase in any fiscal year by a percentage in excess of the fiscal growth factor for that fiscal year without prior legislative approval.

       
  Initiative 960 (2007)
(Laws of 2008, ch. 1, § 14)
 

Amended RCW 43.135.055(1) as follows:

No fee may be imposed or increased in any fiscal year ((by a percentage in excess of the fiscal growth factor for that fiscal year)) without prior legislative approval and must be subject to the accountability procedures required by section 2 of this act.


[original page 3]
 

 
  Initiative 1053 (2010)
(Laws of 2011, ch. 1, § 5)
 

Amended RCW 43.135.055(1) as follows:

((No)) A [sic]1 fee may only be imposed or increased in any fiscal year ((without prior legislative approval)) if approved with majority legislative approval in both the house of representatives and the senate and must be subject to the accountability procedures required by RCW 43.135.031.

       
  Initiative 1185 (2012)
(Laws of 2013, ch. 1, § 4)
 

Amended RCW 43.135.055(1) as follows:

A fee may only be imposed or increased in any fiscal year if approved with a simple majority ((legislative approval)) vote in both the house of representatives and the senate and must be subject to the accountability procedures required by RCW 43.135.031.

 

2. Description Of Fee-Setting Authority In State Statutes

    Hundreds of state statutes authorize or require various state agencies to collect fees.  Many, if not most, of these statutes predate the enactment of any of the initiatives discussed in this Opinion.  See Walker v. Munro, 124 Wn.2d 402, 420, 879 P.2d 920 (1994) (referring to “hundreds of statutes” that authorized the collection of fees before the enactment of Initiative 601).  Such statutes are so numerous that we make no effort to catalog them all, but offer several examples illustrating various approaches that the legislature has taken to authorize or require agencies to impose fees.[2]

    Some statutes directly impose a fee, specifying its dollar amount.  For example, state law requires the Secretary of State to collect a fee of $175 for the filing of articles of incorporation to form new business corporations.  RCW 23B.01.220(2).  Other examples of fees set directly in statute include drivers license fees and hunting and fishing license fees.  RCW 46.20.161; RCW 77.32.450-.470; see also RCW 70.95E.020 (setting the amount of a hazardous waste fee collected by the Department of Ecology).  In instances such as these, the legislature has directly required an agency to collect a fee and set the dollar amount of that fee.

    Other statutes establish a method of calculating a fee that essentially determines the fee formulaically.  For example, state law requires the Secretary of State to collect a filing fee from candidates for elected office.  RCW 29A.24.091.  The statute sets that fee at “one percent of the annual salary of the office at the time of filing[.]”  RCW 29A.24.091.  In such cases, the statute


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doesn’t directly set the dollar amount of the fee, but provides the agency with a method of calculating the fee that merely involves collecting certain information—in the example, the annual salary of an office to be filled by election—and applying a statutory formula.

    Another approach is to authorize an agency to set fees, leaving the agency discretion as to the amount within the terms of the authorizing statute.  For example, the legislature has determined that the cost of regulating various professional, occupation, and business licensing programs should be fully borne by the members of the various regulated professions, occupations, and businesses.  To that end, the legislature has authorized the director of the Department of Licensing to “set the fees for each such program at a sufficient level to defray the costs of administering that program.”  RCW 43.24.086.  Licensing fees for health care businesses and professions are similarly established by the Secretary of Health.  RCW 43.70.250.  Fees for use of park facilities provide a further example in which state law delegates to the Parks and Recreation Commission the power to “[c]harge fees for services, utilities, and use of facilities as the commission shall deem proper.”  RCW 79A.05.070(6).  In such instances, the agency is accorded reasonable discretion to determine the amount of the fee within the terms of the particular authorizing statute.

3. Legislative Grant Of Authority To Set Transportation Fares And Tolls

    The legislature has delegated authority to the Transportation Commission to “adopt [ferry] fares and pricing policies by rule[.]”  RCW 47.60.315(1).  “The commission may increase ferry fares included in the schedule of charges adopted under this section by a percentage that exceeds the fiscal growth factor.”  RCW 47.60.315(3); see also RCW 47.56.032 (“The commission shall determine all fares, tolls, and other charges for its facilities and shall directly perform all duties and exercise all powers relating to financing, refinancing, and fiscal management of the system’s bonded indebtedness in the manner provided by law.”).  The Transportation Commission has held such authority since at least 1984.  Laws of 1984, ch. 7, § 247 (amending RCW 47.56.032 to transfer fee-setting authority from the former toll bridge authority to the Transportation Commission).

    The legislature’s general approach regarding the imposition of tolls on state highways and bridges has been for the legislature to designate specific transportation facilities as toll facilities, and then to delegate to the Transportation Commission the actual setting of the tolls.  RCW 47.56.031 (“No tolls may be imposed on new or existing highways or bridges without specific legislative authorization, or upon a majority vote of the people within the boundaries of the unit of government empowered to impose tolls.”); RCW 47.56.820(1) (“Unless otherwise delegated, only the legislature may authorize the imposition of tolls on eligible toll facilities.”); RCW 47.56.030(1)(b) (“The transportation commission shall determine and establish the tolls and charges thereon.”); RCW 47.56.240 (“Except as otherwise provided in RCW 47.56.850, the commission is hereby empowered to fix the rates of toll and other charges for all toll bridges built under the terms of this chapter.  Toll charges so fixed may be changed from time to time as conditions warrant.”).  The legislature has declared by statute that, “[u]nless these powers are

 
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otherwise delegated by the legislature, the transportation commission is the tolling authority for the state.”  RCW 47.56.850(1).

    These statutes amply demonstrate that the legislature has designated the Transportation Commission as the state’s tolling authority and has delegated to the Transportation Commission the authority to set ferry fares and to set tolls on facilities that the legislature has designated as toll facilities.[3]

    
ANALYSIS

    In its current form, RCW 43.135.055(1) provides:

A fee may only be imposed or increased in any fiscal year if approved with a simple majority vote in both the house of representatives and the senate and must be subject to the accountability procedures required by RCW 43.135.031.

As noted above, many statutes enacted by the legislature already authorize state agencies to impose and/or increase fees, so your request requires us to consider whether I-1185 or its predecessors (I-960 and I-1053) amended or repealed these statutes or required new approval going forward.  We conclude that they did not.  We consider the impact of these initiatives in the order in which they were adopted.

1. Initiative 960 Did Not Supersede The Legislature’s Prior Delegation Of Authority To The Transportation Commission To Set Toll Rates And Ferry Fares

a. Initiative 960 Did Not Restrict The Manner In Which The Legislature Authorizes Fee Increases

    Interpretation of any statute begins with its plain language, giving that language its ordinary meaning.  State v. Kintz, 169 Wn.2d 537, 547, 238 P.3d 470 (2010).  When a statute’s language is unambiguous, statutory construction ends there as well, giving “effect to that plain meaning as the expression of what was intended.”  TracFone Wireless, Inc. v. Dep’t of Revenue, 170 Wn.2d 273, 281, 242 P.3d 810 (2010).

    Initiative 960 amended RCW 43.135.055(1) to provide:  “No fee may be imposed or increased in any fiscal year ((by a percentage in excess of the fiscal growth factor for that fiscal year)) without prior legislative approval and must be subject to the accountability procedures


[original page 6]


required by section 2 of this act.”  This amendment changed the statute from a limitation on the rate of growth of fees to a prohibition against imposing or increasing fees without legislative approval, and required the Office of Financial Management to provide certain cost projections regarding legislative bills approving fees.  Laws of 2008, ch. 1, § 14.  Nothing in I-960, however, specified how the legislature must manifest its approval of fees.  In particular, nothing in the statute bars the legislature from approving the imposition or increase of fees by passing a bill granting authority to an agency to impose or increase fees.

    Some commenters have nonetheless suggested that I-960’s amendments to RCW 43.135.055(1) prohibited the legislature from delegating fee-setting authority to agencies, requiring the legislature to vote directly upon the amount of every fee.  But the statute’s plain language merely requires legislative approval for the imposition or increase of any fee, without specifying the manner in which that approval occurs.  As we explained in an earlier informal opinion on this subject, the statutory language “necessarily requires a vote of the legislature, but the statute does not otherwise constrain the manner in which the legislature proceeds.”  Letter from Jeffrey T. Even, Deputy Solicitor General, State of Washington, to Pam Roach, State Senator, State of Washington (Dec. 20, 2010) (Roach Informal Opinion), at 6.  “For example, the legislature could enact a statute directly imposing or increasing a fee in a specified amount.  It could alternatively delegate the authority to impose or increase fees to an administrative agency, so long as the legislation set forth sufficient standards or guidelines to govern the delegation of authority.”  Id. (citing State ex rel. Peninsula Neighborhood Ass’n v. State, 142 Wn.2d 328, 335‑36, 12 P.3d 134 (2000)).  In the past the legislature has, in fact, approved of fees in such a range of ways.  See supra pp. 3-4.  If the voters had intended to eliminate this significant and often-utilized legislative tool, the measure likely would have said so directly.

    Some of the statements in the Voters’ Pamphlet for I-960 (Voters’ Pamphlet 9-12 (2007)) may suggest that the initiative was intended to prohibit the legislature from delegating fee setting authority to agencies, but the pamphlet’s language is relevant only if the statutory language is ambiguous.  American Legion Post 149 v. Dep’t of Health, 164 Wn.2d 570, 586, 192 P.3d 306 (2008).  As we explained in our prior opinion (Roach Informal Opinion at 6), we see no ambiguity in the plain language of RCW 43.135.055(1) that would restrict the manner in which the legislature approves the imposition or increase of fees.  “A statute is ambiguous only if susceptible to two or more reasonable interpretations, but a statute is not ambiguous merely because different interpretations are conceivable.”  Burton v. Lehman, 153 Wn.2d 416, 423, 103 P.3d 1230 (2005).  “For a statute to be ambiguous, two reasonable interpretations must arise from the language of the statute itself, not from considerations outside the statute.”  Cerrillo v. Esparza, 158 Wn.2d 194, 203-04, 142 P.3d 155 (2006).

    One could argue that accepting the plain language of RCW 43.135.055(1) leaves it with little effect, because it means that the statute merely restates a constitutional rule.  That is, because agencies cannot constitutionally take actions beyond the power granted to them by the legislature, agencies could not impose or increase fees without legislative approval regardless of RCW 43.135.055(1).  See, e.g., Washington Indep. Tel. Ass’n v. Washington Utils. & Transp. Comm’n, 148 Wn.2d 887, 901, 64 P.3d 606 (2003) (“An agency has only the authority granted


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by statute.”); see also Inland Foundry Co. v. Spokane County Air Pollution Control Auth., 82 Wn. App. 67, 72, 915 P.2d 537 (1996) (finding authority for the imposition of a fee).

    The problem with this argument, however, is that countless statutes simply restate constitutional requirements.  See, e.g., RCW 2.04.010 (restating the jurisdiction of the Washington Supreme Court, also stated in Const. art. IV, § 4); RCW 2.08.010 (restating the jurisdiction of superior courts, also stated in Const. art. IV, § 6); RCW 44.05.030 (restating the provisions for determining membership on the state redistricting commission, also stated in Const. art. II, § 43).  Just as courts do not strain to read more into these statutes than appears in their text simply because they restate constitutional principles, we will not alter the plain meaning of RCW 43.135.055(1).  In other words, the maxim that statutory language should be given some effect is insufficient to alter the plain meaning of a statute that restates a constitutional rule; with such statutes, the relevant “effect” is to codify a constitutional rule and promote clarity on the topic.  See State v. Ahluwalia, 143 Wn.2d 527, 538-39, 22 P.3d 1254 (2001) (finding that two statutes merely restated the “constitutional double jeopardy provisions” and rejecting the argument that this reading was inappropriate because it left the statutes “meaningless and superfluous”); Schneider v. Forcier, 67 Wn.2d 161, 167-68, 406 P.2d 935 (1965) (Finley, J., dissenting) (maxims of statutory construction are not rules of law, but merely aids to construction of ambiguous statutory language).

    Moreover, construing RCW 43.135.055(1) as prohibiting the legislature from delegating fee-setting authority could potentially expose the statute to constitutional challenge.  See In re Personal Restraint of Matteson, 142 Wn.2d 298, 307, 12 P.3d 585 (2000) (“Wherever possible, it is the duty of this court to construe a statute so as to uphold its constitutionality.” (Internal quotation marks omitted.)).  As the Washington Supreme Court has explained:  “It is a fundamental principle of our system of government that the legislature has plenary power to enact laws, except as limited by our state and federal constitutions.”  Washington State Farm Bureau Fed’n v. Gregoire, 162 Wn.2d 284, 290, 174 P.3d 1142 (2007); see also State ex rel. Citizens Against Tolls v. Murphy, 151 Wn.2d 226, 248, 88 P.3d 375 (2004).  The earlier informal opinion correctly relied upon Farm Bureau for the proposition that “‘[i]mplicit in the plenary power of the legislature is the principle that one legislature cannot enact a statute that prevents a future legislature from exercising its law-making power.’”  Roach Informal Opinion at 6-7 (quoting Farm Bureau, 162 Wn.2d at 301); see also League of Educ. Voters v. State, 176 Wn.2d 808, 825, 295 P.3d 743 (2013) (rejecting as “antithetical to the notion of a functioning government” the use of the initiative process to restrict the authority of the elected legislature by requiring supermajority approval for tax increases).  The people exercise the same legislative power when enacting an initiative as does the legislature in enacting a statute, and accordingly “cannot, by initiative, prevent future legislatures from exercising their law-making power.”  Farm Bureau, 162 Wn.2d at 302.  Our conclusion avoids any constitutional conflict.  See Addleman v. Bd. of Prison Terms & Paroles, 107 Wn.2d 503, 509, 730 P.2d 1327 (1986) (construing statute in part to avoid constitutional infirmity).


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    Nor does the reference in RCW 43.135.055 to “the accountability procedures required by RCW 43.135.031” support an argument that RCW 43.135.055(1) requires specific legislative votes on each and every fee, prohibiting delegation.  Those procedures consist of estimates prepared by the Office of Financial Management of the cost to taxpayers of specific proposed legislation proposing tax or fee increases.  RCW 43.135.031.  As was also correctly explained in the prior informal opinion, “the procedures described in RCW 43.135.031 come into play only if a bill directly imposing or increasing a fee is introduced in the legislature.”  Roach Informal Opinion at 5 n.6.  That opinion explained that “[n]othing in either RCW 43.135.031 or .055 prohibits the legislature from approving a fee in a different manner, and no such principle can be inferred from the fact that one statute cross-references the other.”  Roach Informal Opinion at 5 n.6. (citing TracFone Wireless, Inc., 170 Wn.2d at 290 (concluding that a statute requiring a tax to be set out separately on a monthly statement did not excuse the collection of the tax if monthly statements were not sent)).[4]

For these reasons, we conclude that the plain language of I-960 did not prohibit the legislature from exercising its authority to enact statutes that delegate fee-setting authority to administrative agencies.

b. Initiative 960 Did Not Require New Authority For Agencies To Impose Or Increase Fees Where The Legislature Has Already Granted An Agency Such Authority

    As noted above, state law has long included numerous statutes that authorize or require agencies to collect various fees.  See supra pp. 3-4.  Initiative 960 did not explicitly amend or repeal any of them.  Laws of 2008, ch. 1.  The prior informal opinion nonetheless construed RCW 43.135.055(1), as amended by I-1053, as requiring new legislative approval coming after the enactment of the initiative, effectively amending or repealing all of these statutes.  It explained:  “In a manner of speaking, I-1053 hit the ‘reset’ button on legislative approval of the imposition or increase of fees, limiting such actions to those approved anew by the legislature after the effective date of the measure.”  Roach Informal Opinion at 6.  On further and closer consideration, we conclude that this was incorrect.

    Nothing in I-960’s text removed agencies’ authority derived from other statutes to impose or increase fees.  Those other statutes constitute legislative approval for agency fee setting,


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whether enacted before or after I-960.  Initiative 960’s amendments to RCW 43.135.055(1) in no way contradict the numerous specific statutes granting legislative approval for agency fee setting.  See Residents Opposed to Kittitas Turbines v. State Energy Facility Site Evaluation Council, 165 Wn.2d 275, 309, 197 P.3d 1153 (2008) (a specific statute acts as an exception to a later-enacted general statute unless expressly repealed).  RCW 43.135.055(1) can thus be harmonized with the numerous statutes that authorize fees.  Peninsula Neighborhood Ass’n, 142 Wn.2d at 342 (statutes are to be harmonized whenever possible).

    We have also considered and rejected the possibility that I-960’s amendment to RCW 43.135.055(1) impliedly repealed or amended the pre-existing statutes that authorized the imposition or increase of numerous fees.  “Repeal or amendment of a statute by implication is not favored in the law, however,” and will be found only when two statutes cannot be reconciled.  In re Detention of R.S., 124 Wn.2d 766, 774, 881 P.2d 972 (1994) (citing Misterek v. Washington Mineral Prods., Inc., 85 Wn.2d 166, 168, 531 P.2d 805 (1975) (citing Washington State Welfare Rights Org. v. State, 82 Wn.2d 437, 511 P.2d 990 (1973))).  Here, it is eminently possible to reconcile RCW 43.135.055(1) with the many other statutes authorizing agencies to establish or increase fees.  RCW 43.135.055(1) requires that agencies have legislative approval to impose or increase fees, and these other statutes provide that approval.  We thus cannot find the irreconcilable conflict or clear legislative intent that would be necessary to show amendment or repeal by implication.

    It would be particularly difficult to infer any intent to repeal or amend statutes in which the legislature provided a formula for calculating a fee.  For example, the legislature has already directed the Secretary of State to charge a filing fee of “one percent of the annual salary of the office at the time of filing[.]”  RCW 29A.24.091.  When the salary for an office increases, the fee increases, and reading I-960 to block such increases would mean that it had, without saying so, repealed (or at least amended) this and other grants of power to agencies to charge fees.  This point also emphasizes the difficulty in finding any implied repeal or amendment at all, because I-960 suggests no basis for inferring a distinction between one type of fee-setting statute and another.

    In addition, reading I-960 as hitting the “reset” button and requiring new statutory authorization would lead to the absurd result that two identically worded statutes enacted at different times would have entirely different effects.  For example, under this reading, a statute authorizing the Transportation Commission to set ferry fares would be effective if enacted after I-960, but would have no effect if enacted before, even if the language of the two statutes were identical.  Courts generally avoid constructions that would yield such unlikely, absurd, or strained consequences.  Kilian v. Atkinson, 147 Wn.2d 16, 21, 50 P.3d 638 (2002).  When a court can avoid such a result without “doing violence to the words of the statute,” it will do so.  State v. Hall, 168 Wn.2d 726, 737, 230 P.3d 1048 (2010).

    We must also take note of an additional constitutional problem that could arise if RCW 43.135.055(1) were construed to repeal or amend other statutes by implication.  You specifically ask about the authority of the Transportation Commission to set tolls on state


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highways and bridges and fares for state ferries.  When a fee is imposed to pay for a major capital project, such as a bridge, highway project, or other major construction, the project is often financed through bonded indebtedness.  Terms of such bonds may include a pledge of fee revenue, including promises that fees will be increased if necessary to generate the revenue stream needed to service the bonds.  See, e.g., Pierce County v. State ex rel. Dep’t of Licensing, 159 Wn.2d 16, 24-25, 148 P.3d 1002 (2006).  On appropriate facts a statute that purported to withdraw the authority to impose or increase a fee could be held to impair governmental contractual obligations toward private parties.  Id. at 27-28 (invalidating a prior initiative to the extent that it repealed authorization for a revenue source that had been pledged in security for bonded indebtedness).  This opinion is not the appropriate forum for considering potential factual scenarios, but our conclusion again avoids this potential constitutional obstacle.  See Addleman, 107 Wn.2d at 509.

    In the prior informal opinion, we nonetheless concluded that I-1053 did “hit the ‘reset’ button” and required new legislative approval of fees after its effective date.  Roach Informal Opinion at 6.  That informal opinion, however, failed to address all of the problems with that reading described above.  In particular, that opinion never considered that such a reading of I‑1053 amounted to an implied amendment or repeal of hundreds of statutes, and that the test for implied amendment or repeal is clearly not satisfied.  Instead, the informal opinion relied almost exclusively on the maxim of statutory construction that amendments are presumed to change the law.  Roach Informal Opinion at 6 (citing Home Indem. Co. v. McClellan Motors, Inc., 77 Wn.2d 1, 3, 459 P.2d 389 (1969)).  But I-960 did change the law by removing the linkage between the rate of increase in the state expenditure limit and the rate of increase in fees, and by adding the reference to fiscal information.  Laws of 2008, ch. 1, § 14.  There is, accordingly, no reason to infer any additional change in the law that the statute’s language does not demonstrate.

    This means that, following the enactment of I-960, RCW 43.135.055(1) stated a general principle that legislative approval is required to impose or increase a fee.  But the statute did not specify the manner, or the time, at which legislative approval of fee setting must take place, and did not repeal or amend any of the numerous other statutes that authorize the imposition or increase of fees.  We now turn to the later two initiatives, I-1053 and I-1185, to consider whether those measures may have changed the meaning of RCW 43.135.055(1).

2. Initiatives 1053 And 1185 Made Only Modest Amendments To RCW 43.135.055(1), Which Do Not Require The Transportation Commission To Obtain Additional Legislative Approval For The Setting Of Toll Rates And Ferry Fares

    Initiative 1053 amended RCW 43.135.055(1) to restate its terms in positive rather than negative language and to specify that the approval need only be by a legislative “majority.”  Laws of 2011, ch. 1, § 5.  Initiative 1185 restated the provision again to clarify that the legislative “majority” that must approve the imposition or increase need only be a “simple majority.”  Laws of 2013, ch. 1, § 4.  We cannot coax from these amendments any requirement for new legislative approval for the imposition or increase of a fee when other statutes plainly authorize agencies to impose or increase fees and those statutes are not amended or repealed by


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these initiatives.  We accordingly conclude that the amendments to RCW 43.135.055(1) in the later initiatives are limited to the changes they made to the face of the statute.

    The earlier informal opinion expressed a concern that if I-1053 is not construed to require fresh legislative approval coming after the initiative’s enactment, then our construction would conflict with the presumption that a statutory amendment is presumed to change the law.  Roach Informal Opinion at 6 (citing Home Indem. Co., 77 Wn.2d at 3).  We have already explained that I-960 does not present this concern, because the amendment to RCW 43.135.055(1) set forth in I-960 clearly changed the law in other substantive ways.  See supra p. 10.  We also see no concern as to I-1053 and I-1185, because comparing the language of RCW 43.135.055(1) in each of them with the preceding version of that statute reveals no meaningful change to the statute.

    When rearrangements of legislative language without apparent change to the statute’s meaning are strung together, as has now occurred with I-1053 restating I-960, and I-1185 restating I-1053, the maxim that amendments are presumed to change the law ceases to have any convincing power.  Rather, it becomes apparent that repeated amendments substituting one similar phrase for another at two-year intervals are primarily intended to make amendment of the statute by the legislature more difficult by attempting to renew the state constitution’s two-year limitation on amendment or repeal of an initiative.[5]  Const. art. II, § 1(c) (limiting amendment or repeal of an initiative within two years of its enactment).  Sometimes amendments may be enacted for a purpose other than changing the law.  See, e.g., Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 225 (2008) (recognizing that an amendment served simply to remove any doubt about the meaning of the statute); see also Coppernoll v. Reed, 155 Wn.2d 290, 322, 119 P.3d 318 (2005) (noting that initiatives sometimes serve a purpose independent of their legal effect, such as “to express popular will and to send a message to elected representatives”).  The amendments set forth in I-1053 and I-1185 accordingly can be explained without resort to a quest to discover a change in the meaning of RCW 43.135.055(1) that its language does not support.

    The intent sections of both I-1053 and of I-1185 support this conclusion.  The intent sections of both measures explained them using identical language:  “This initiative should deter the governor and the legislature from sidestepping, suspending[,] or repealing any of [the prior initiative’s] policies . . . .”  Laws of 2011, ch. 1, § 1; Laws of 2013, ch. 1, § 1.  They thus explained the purpose of their minor changes in statutory phrasing simply in terms of making it more difficult to amend the prior measure.  The intent sections therefore support the conclusion that I-1053 and I-1185 do nothing more than what they facially appear to do.[6]


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    In sum, RCW 43.135.055(1), as amended by I-960, I-1053, and I-1185, simply states that a fee may only be imposed or increased by a simple majority vote in the legislature.  It does not specify how the legislature must approve fees, it does not repeal or amend the hundreds of other statutes granting agencies fee-setting authority, and it makes no distinction as to when legislative approval must take place.  We accordingly conclude that to the extent the legislature has already approved the imposition or increase of fees through duly-enacted statutes, RCW 43.135.055(1) requires no further legislative approval.


    We trust the foregoing will be useful to you.


ROBERT W. FERGUSON
    Attorney General     

JEFFREY T. EVEN
    Deputy Solicitor General 

wros
  




[1] Initiative 1053 added the word “A” to RCW 43.135.055(1), but did not show the addition by underlining it.

[2] The Office of Financial Management has inventoried the various fees imposed by state agencies as of 2012:  http://www.ofm.wa.gov/budget/fees/2012/default.asp (last visited Mar. 27, 2014).

[3] The transportation budget for the fiscal 2013-15 biennium explicitly authorizes the Transportation Commission to review and adjust ferry fares and tolls for the Tacoma Narrows Bridge and for the State Route 167 pilot project during the biennium.  Laws of 2013, ch. 306, §§ 205, 709.  This express authorization does not render your question moot, however, because the provisions of the current transportation budget relate only to the present biennium.  Laws of 2013, ch. 306, § 1.

[4] We recognize that the intent section of I-960 included a policy statement arguing that fee increases should be debated and voted upon in the legislature rather than at state agencies.  Laws of 2008, ch. 1, § 1 (last paragraph).  Intent sections can be helpful as part of reading the plain language of the enacted statute.  G-P Gypsum Corp. v. Dep’t of Revenue, 169 Wn.2d 304, 309, 237 P.3d 256 (2010).  But our Supreme Court has declined to give independent effect to a policy statement set forth in an intent section when the legally binding sections of an initiative fail to reflect that policy.  Pierce County v. State, 150 Wn.2d 422, 433-34, 78 P.3d 640 (2003) (rejecting the argument that a policy statement that was not implemented in the legally binding sections of Initiative 776 constituted a separate subject for purposes of article II, section 19 of the Washington Constitution).  Therefore, it is not enough for a legislative drafter to represent in an intent section that a measure does something; that “something” must be carried to execution in the actual substantive language of the legislation.

[5] It is unnecessary to consider whether such amendments actually have this effect in order to respond to your question, and we express no opinion on that point.

[6] Because we reach our conclusion based upon the plain language of the initiatives themselves, we need not consider the legislative history of the measures set forth in the Voters’ Pamphlets.  American Legion Post 149, 164 Wn.2d at 586.  But even if we did, the Voters’ Pamphlet for I-1053 contains nothing supporting a contrary conclusion.  Voters’ Pamphlet 7-8 (2010).  The Voters’ Pamphlet for I-1185 includes a fiscal impact statement that assumes, based upon our prior informal opinion, that new legislative approval would be required in order to impose tolls on state highways and bridges.  Voters’ Pamphlet 7-10 (2012).  We conclude in this Opinion that our prior informal opinion was incorrect in this regard, depriving the assumptions derived from it of any persuasive power.

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