Authorizing The Uninterrupted Continuation Of An Emergency Medical Services Levy

EMERGENCY MEDICAL SERVICES—TAX LEVIES—Authorizing The Uninterrupted Continuation Of An Emergency Medical Services Levy

Where local voters have previously approved an emergency medical services levy for either a six-year or ten-year period, the approval of at least 60 percent of the voters is necessary to extend the levy for an additional period at a higher tax rate.

September 27, 2013

Dear Representative Van De Wege:

By letter previously acknowledged, you have requested our opinion on a question that I have paraphrased as follows:

Under RCW 84.52.069, can a taxing district seeking to continue a previously established emergency medical services (EMS) levy also increase the levy rate with only a simple majority vote, rather than the 60 percent needed to initially impose an EMS levy?

BRIEF ANSWER

    No.  The plain language of RCW 84.52.069(2) allows a simple majority vote only where the proposed levy is an “uninterrupted continuation” of a six-year or ten-year EMS levy.  An increase in the levy rate is not an “uninterrupted continuation” and, thus, the 60 percent requirement applies to EMS levies that propose increased levy rates.  To conclude otherwise would allow an eligible taxing district to obtain, with 60 percent voter approval, a six-year or ten-year levy at a low rate, and then obtain a subsequent six-year or ten-year levy at the maximum rate with only simple majority approval.  Emergency medical services are of course vitally important, but we believe that if the legislature had intended a levy increase to be valid with simple majority approval, it would have said so expressly.

BACKGROUND

    An EMS levy is a voter-approved property tax levy used to provide emergency medical care and emergency medical services within a taxing district.  RCW 84.52.069(5).  An EMS levy may be imposed for six years, ten years, or permanently, and it cannot exceed fifty cents per

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thousand dollars of assessed value of the property in the taxing district.  RCW 84.52.069(2).  Until 2012, under subsection (2) of the EMS levy statute, all EMS levies had to be approved by three-fifths (60 percent) of registered voters voting in the election, so long as voter turnout exceeded 40 percent of voter turnout at the last general election.  Former RCW 84.52.069 (2011).[1]  The law also provided that “any future increase up to the maximum allowable levy amount [had to be] specifically authorized by the voters in accordance with subsection (2) of this section at a general or special election.”  RCW 84.52.069(8).

    In 2012, the legislature amended subsection (2) of RCW 84.52.069 to provide that a “permanent [EMS] tax levy . . . or the initial imposition of a six-year or ten-year [EMS] levy . . . must be specifically authorized by a majority of at least three-fifths of the registered voters . . . at a general or special election,” so long as voter turnout requirements are met.[2]  Substitute S.B. 5381, § 1(2), 62d Leg., Reg. Sess. (Wash. 2012), enacted as Laws of 2012, ch. 115, § 1(2).  The 2012 legislation also added the following sentence to subsection (2):  “The uninterrupted continuation of a six-year or ten-year tax levy under this section must be specifically authorized by a majority of the registered voters thereof approving a proposition authorizing the levies submitted at a general or special election.”  SSB 5381, § 1(2).  The 2012 legislation did not alter the EMS levy statute’s provision regarding increases in levy amounts.  Thus, the law still states that “any future increase up to the maximum allowable levy amount must be specifically authorized by the voters in accordance with subsection (2) of this section at a general or special election.”  RCW 84.52.069(8).

    In sum, the provision in the EMS levy statute addressing levy increases says only that they must be “specifically authorized by the voters in accordance with subsection (2).”  RCW 84.52.069(8).  The 2012 legislation for the first time drew a distinction in subsection (2) between (a) permanent EMS levies and “the initial imposition of a six-year or ten-year [EMS] levy” and (b) the “uninterrupted continuation of a six-year or ten-year tax levy.”  RCW 84.52.069(2).  A permanent or initial imposition of a temporary EMS tax levy must be adopted by 60 percent voter approval, while an “uninterrupted continuation” of a six-year or ten-year EMS levy can now be approved by a simple majority.

    As you noted in your request, Assistant Attorney General Jonathon Bashford responded to a request for an opinion on a related topic from Representative Pearson on November 30, 2012.  Letter from Jonathon Bashford, Assistant Attorney General, State of Washington, to Kirk Pearson, State Representative, State of Washington (Nov. 30, 2012) (Pearson Informal Opinion).[3]  In the course of that informal opinion, Mr. Bashford concluded:  “A ballot measure that asks the voters to approve an EMS levy at a higher rate is not simply an ‘uninterrupted

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continuation’ of the prior levy.”  Pearson Informal Opinion at 7.  You have asked that we reconsider this conclusion.

ANALYSIS

    In any question involving statutory construction, we must first strive to ascertain the intent of the legislature by examining the statute’s plain meaning.  E.g., Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002).  A statute’s plain meaning should be discerned “from the ordinary meaning of the language at issue, as well as from the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole.”  State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005).  Where the legislature does not define a nontechnical term that appears in a statute, we may look to the dictionary definition as part of the plain meaning analysis.  E.g., State v. Kintz, 169 Wn.2d 537, 547, 238 P.3d 470 (2010).  We do not resort to legislative history or other construction aids unless, after a plain meaning analysis, the statute remains ambiguous.  Campbell & Gwinn, 146 Wn.2d at 12.  “A statute is not ambiguous merely because different interpretations are conceivable”; it must be “susceptible to two or more reasonable interpretations.”  Burton v. Lehman, 153 Wn.2d 416, 423, 103 P.3d 1230 (2005).

    The EMS levy statute does not define “uninterrupted continuation,” and so these terms  should be given their ordinary meaning.  The word “uninterrupted” means “not interrupted : continuous.”  Webster’s Third New International Dictionary 2499 (2002).  The first definition of the word “continuation” is “continuance in a state, existence, or activity : uninterrupted extension or succession : prolongation : the causing of something to continue.”  Webster’s at 493.  In turn, the definition of the word “continuance” is “a holding on or remaining in a particular state or course of action.”  Webster’s at 493.  While the third definition of “continuation” is “something that continues, extends, increases, or supplements,” that definition is followed by an example:  “< the border is a [continuation] of the central design>.”  Webster’s at 493.

    Thus, the first definition of the word “continuation,” in particular, contemplates remaining in a certain “state” or “existence,” not a change of a significant or essential characteristic.  Moreover, the legislature’s use of both “uninterrupted” and “continuation” indicates that the legislature intended “continuation” to have independent meaning beyond simply “uninterrupted” in time.  G-P Gypsum Corp. v. Dep’t of Revenue, 169 Wn.2d 304, 309, 237 P.3d 256 (2010) (recognizing that statutes must be construed so that all language is given effect and no portion is rendered superfluous).  The third definition of “continuation” includes the word “increase,” but when read in context, including the example, even that definition does not suggest that a “continuation” can change an essential characteristic of the original; rather, it merely suggests that the same thing (e.g., a border or pattern) can “increase” by continuing onward.

    The levy amount is an essential characteristic that the voters must consider and approve.  See RCW 84.52.069(2), (8), .010(1) (“all taxes must be levied or voted in specific amounts”

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(emphasis added)).  Because the ordinary meaning of the word “continuation” does not imply a change in a significant or essential characteristic (here, the levy amount), the ordinary meaning of “uninterrupted continuation of a six-year or ten-year tax levy” would be continuation of the levy as originally passed.  As expressed in the Pearson Informal Opinion, “[w]here two levies are authorized at different rates the second cannot be considered a mere ‘continuation’ of the first, even if they are ‘uninterrupted’ in time.”  Pearson Informal Opinion at 7.

    Moreover, in order to find that an “uninterrupted continuation” of an EMS levy could occur despite an increase in the levy rate, we would have to read “levy” as used in subsection (2) to mean only the imposition of the tax, not the levy rate.  But the surrounding context of RCW 84.52 suggests otherwise.  While the legislature has sometimes used the term “levy rate” in RCW 84.52 to refer specifically to the rate of a levy, the term “levy” alone is also often used in RCW 84.52 to convey both the fact of a tax and the particular tax rate.  RCW 84.52.135(7), .085(1) (referring to adjustment of rate as adjustment of “the levy”), .044(1)(a) (“The regular levy of the district . . . shall not exceed fifty cents per thousand dollars of assessed value . . . .”).

    In addition, RCW 84.52.010 explains that “all taxes must be levied or voted in specific amounts,” with some unrelated exceptions.  RCW 84.52.010(1) (emphasis added).  According to this language, the act of levying must involve imposing a specific property tax rate.  Thus, RCW 84.52.010 also weighs against distinguishing the fact of the tax from the levy rate in a way that would permit us to read “uninterrupted continuation of a six-year or ten-year tax levy” as you suggest.

    In sum, the plain meaning of “uninterrupted continuation of a six-year or ten-year tax levy,” considering both the ordinary meaning of the words and the full context of the statute, contemplates continuation of both the levy itself and its rate.  Thus, a simple majority vote can approve the continuation of a six-year or ten-year levy only if the levy rate remains the same.  If an increase in the levy rate is proposed, then the new levy is an “initial imposition of a six-year or ten-year [EMS] levy” at that increased rate, and it must be specifically authorized by a 60 percent vote.

    You ask us to reconsider this conclusion, as expressed in the Pearson Informal Opinion, based upon comments made during debate on the floor of the House of Representatives in opposition to Substitute Senate Bill 5381 and in opposition to an identically worded House Bill.  Washington courts do not resort to legislative history or other construction aids unless, after a plain meaning analysis, the statute remains ambiguous.  Campbell & Gwinn, 146 Wn.2d at 12.  As a result, it is unnecessary to turn to legislative history in this case.  Even if we were to consider it, however, the legislative history of the 2012 legislation, considered as a whole, lends weight to our conclusion.

    While speaking against passage of Substitute Senate Bill 5381, an opponent of the bill stated that “under the definition of ‘renewal’ in this bill, there could actually be a tax increase.”  He explained that the statute could be interpreted to allow a simple majority of voters to approve

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an increase.[4]  House Floor Debate on Substitute Senate Bill 5381, 62d Leg., Reg. Sess. (Wash. Feb. 29, 2012), at 44:25-44:46, video recording by TVW, Washington State’s Public Affairs Network, available at http://www.tvw.org/index.php?option=com_tvwplayer&eventID =2012020184A.  The statement was equivocal, reflecting only one construction that the bill could receive.  House Floor Debate at 44:25-44:46; see also Pearson Informal Opinion at 7 n.8 (discussing the same passage from legislative debate).  Moreover, comments of an individual legislator do not necessarily reflect the understanding of the legislature as a whole.  See Spokane Cnty. Health Dist. v. Brockett, 120 Wn.2d 140, 154-55, 839 P.2d 324 (1992).  As a practical matter, other legislators may not have understood the member’s description to reflect the true impact of the legislation because it simply reflects the statement of a single member who was opposed to the bill, and the proponent did not describe the bill in this way.  See  2A Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 48:16 (2007) (the views of a single member do not necessarily demonstrate the understanding of the entire body); see also House Floor Debate at 43:46-44:13.

    If a court were to consider legislative history, it would also consider the evolution of the bill within the legislature.  Lewis v. Dep’t of Licensing, 157 Wn.2d 446, 470, 139 P.3d 1078 (2006) (sequential drafts of a bill may aid in determining legislative intent).  Senate Bill 5381 was originally introduced in the 2011 legislative session, proposing amendments to the EMS levy statute.  The original version of the bill proposed amending the statute to eliminate the 60 percent voter approval requirement for all EMS levies, instead imposing a requirement that EMS levies be approved by a simple majority vote.  S.B. 5381, 62d Leg., Reg. Sess, § 1 (2011).  The bill did not receive senate committee approval in 2011.  See S.B. 5381 - 2011-12, Wash. St. Legislature, http://apps.leg.wa.gov/billinfo/summary.aspx?bill=5381&year=2011 (last visited Sep. 17, 2013).

    The legislature amended the same bill in the 2012 legislative session in a substitute bill.  S.B. 5381 - 2011-12; see Buchanan v. Simplot Feeders, Ltd., 134 Wn.2d 673, 688, 952 P.2d 610 (1998) (tracing sequential drafts of the same bill from one session to the next within the same legislature).  As amended in 2012, and subsequently enacted, the bill no longer amended RCW 84.52.069(2) to replace the 60 percent approval requirement with majority approval, but merely permitted the “uninterrupted continuation of a six-year or ten-year tax levy” upon a simple majority vote.  Laws of 2012, ch. 115, § 1(2).  When the legislature adopted this approach, it chose to allow simple majority approval of an EMS levy only in certain limited circumstances.

    If we were to interpret “uninterrupted continuation of a six-year or ten-year tax levy” to include uninterrupted continuation of the tax, but at an increased amount, a taxing district faced with voter resistance to an expensive EMS levy could reach the maximum levy amount without ever achieving 60 percent approval of the maximum rate.  A taxing district could obtain 60 percent voter approval of an initial six-year or ten-year EMS levy at a low levy amount.  Then,

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upon expiration, the taxing district could raise the levy amount dramatically, even up to the statutory maximum, with only majority voter approval.  This construction would be inconsistent with the history of the bill’s sequential drafts, because it would ignore the legislature’s conscious effort to specifically identify the limited circumstances under which a simple majority vote would be sufficient.  We believe that had the legislature intended such a result, it would have said so expressly.[5]

    We trust that the foregoing will be useful to you.

 

ROBERT W. FERGUSON
Attorney General

REBECCA R. GLASGOW
Deputy Solicitor General

[1] Where voter turnout was less than 40 percent of the turnout in the last general election, the “yes” vote had to exceed 24 percent of the total number of votes in the last general election.  See RCW 84.52.069(2) (requiring approval of 60 percent of 40 percent of voters voting in the last general election, which equals 24 percent (.6 x .4 = .24) of the total number of votes in the last general election).

[2] The new legislation retained the EMS levy statute’s voter turnout provision.  See supra note 1.

[3] A copy of the Pearson Informal Opinion is attached for ease of reference.

[4] It is not entirely clear whether the opponent was referring to a levy rate increase or the levy lid increase at issue in the Pearson Informal Opinion.

[5] In your request, you also pointed to a post by Judy Cox on the Municipal Research and Services Center website, and emphasized Ms. Cox’s expertise.  Ms. Cox originally reported that a member of the Department of Revenue staff had indicated to her that they and legislative staff believed “the new tax rate is not an issue” when a county seeks to renew a six-year or ten-year levy.  Judy Cox, It’s Now Easier to Renew an EMS Levy! (May 11, 2012), http://insight.mrsc.org/2012/05/11/now-easier-to-renew-an-ems-levy.  But Ms. Cox later revisited the question and expressed agreement with this office’s informal [Pearson] opinion:

Mr. Bashford’s opinion makes sense to me.  If this were not the case, an entity could theoretically put the first or initial 6- or 10-year EMS levy on the ballot at some low rate that they think the supporters are likely to pass with a 60 percent vote.  Then, the entity could do a continuation levy at a higher rate with a simple majority vote, with the result that the levy rate could be increased without a 60 percent vote.

Judy Cox, Revisiting the ‘Uninterrupted Continuation’ EMS Levy with an Informal Attorney General’s Opinion (Feb. 4, 2013), http://insight.mrsc.org/2013/02/04/revisiting-the-uninterrupted-continu….