State v. Murphy

Talmadge, J.

(concurring) — I generally concur with the majority’s analysis of petitioner Heavey’s constitutional argument. However, petitioner Heavey has raised appropriate policy questions regarding Referendum 49. From the standpoint of fiscal policy, the Legislature’s decision to apply motor vehicle excise tax (MVET) revenues to transportation purposes diverts millions of dollars from the General Fund to the dedicated fund for highway needs created by article II, section 40 (amendment 18) of the Washington Constitution. In effect, the Legislature decided to rob Peter to pay Paul. Transportation services are important, but Referendum 49 is enacted at a time when there are demands on the General Fund for needed services such as common school education, including higher salaries for educational staff, social services, and higher education. This fiscal policy hardly seems wise. Moreover, the combined effect of the fiscal restraints of Initiative 601 and Referendum 49 will pinch services paid out of the General Fund ever more tightly in the years ahead.

Ironically, the persons arguing for the passage of the Eighteenth Amendment and the creation of the dedicated highway fund tried to assure the people MVET revenues would not be diverted from the General Fund’s educational purposes to other needs. The 1944 Voter’s Pamphlet describes the proviso in the Eighteenth Amendment discussed by petitioner Heavey as “excepting from its provisions certain other designated fees and taxes.” Ex. YY. This assurance now goes for naught.

In general, any dedicated funds, particularly constitutionally dedicated funds, are unwise fiscal policy. Needs change. Fiscal policy should be sufficiently flexible to meet changed conditions. Dedicated funds run counter to sensible fiscal policy.

However, even though the Legislature’s decision to refer Referendum 49 to the people and to divert MVET monies *815from the General Fund to transportation funding makes for risky public policy and poor fiscal practice, a bad decision by the Legislature or the people is not necessarily unconstitutional. For the reasons the majority has articulated here, the diversion of MVET revenues from the General Fund to the dedicated funds for highway purposes is not unconstitutional. There is nothing in the Eighteenth Amendment clearly barring such a practice. In the absence of an unconstitutional act, under our constitutional system of separation of powers, we must defer to the Legislature’s policy judgment, even in the circumstances where we think the policy judgment is unwise. City of Seattle v. Montana, 129 Wn.2d 583, 592, 919 P.2d 1218 (1996) (“wisdom or necessity [of legislation] is a matter left exclusively to the legislative body.”).