Burns v. City of Seattle

¶64 (dissenting) — The legislature has decreed that “[n]o city or town may impose a franchise fee or any other fee or charge of whatever nature or description upon” an electric utility, except in limited circumstances not applicable here. RCW 35.21.860(1) (emphasis added). Seattle City Light (SCL) is such an electric utility.5 The cities of Burien, Lake Forest Park, SeaTac, Shoreline, and Tukwila (Cities) clearly violated this prohibition when they imposed a six percent fee as a condition of each of their franchise agreements with SCL. Yet, the majority would

J.M. Johnson

*162uphold the Cities’ actions and allow this six percent charge to be imposed — ultimately as a tax on consumers. I disagree with the majority’s attempt to force an unduly narrow construction on the unambiguous language of RCW 35.21-.860, which plainly prohibits the Cities’ conduct. Accordingly, I dissent.

¶65 As an initial matter, I concur in the majority’s conclusion that to “impose” a “franchise fee or any other fee or charge” within the meaning of RCW 35.21.860(1), a city or town need not exert unilateral force, by, for example, exercising its tax powers. Majority at 141. Rather, such fees or charges may be “imposed” by contract, or voluntary agreement. Id. Likewise, I agree with the majority’s determination that the charges at issue here do not constitute “franchise fees,” as defined by Washington law. Majority at 142. However, I disagree with the majority’s conclusion that the charges imposed by the Cities are not “any other fee or charge of whatever nature or description” prohibited by RCW 35.21.860(1). Majority at 153. The Cities’ charges are clearly forbidden under the plain meaning of this statutory language. Therefore, I dissent.

¶66 As indicated by the majority, this case turns on an issue of statutory interpretation. Majority at 140. The goal of statutory interpretation is to “ascertain and give effect to the legislature’s intent and purpose.” In re Parentage of 155 Wn.2d 374, 387, 119 P.3d 840 (2005). The primary source to be used is the plain language of the statute. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003) (citing Nat’l Elec. Contractors Ass’n v. Riveland, 138 Wn.2d 9, 19, 978 P.2d 481 (1999)). If the plain language of the statute is unambiguous, then this court’s inquiry is at an end. Id. The statute is to be enforced in accordance with its plain meaning. Id.

¶67 The terms “fee” and “charge” are not defined in RCW 35.21.860 or in any related statutory provision. As nontechnical words, these terms are to be given their plain, dictionary meanings. State v. Fjermestad, 114 Wn.2d 828, 835, 791 P.2d 897 (1990) (citing State v. Olson, 47 Wn. App. 514, *163516-17, 735 P.2d 1362 (1987)). According to the dictionary, “fee” means a “fixed charge,” Webster’s Third New International Dictionary 833 (2002), while “charge” means an “expenditure or incurred expense.” Id. at 377. Thus, in addition to prohibiting franchise fees, RCW 35.21.860(1) prohibits the imposition of any other fixed charge, expenditure, or incurred expense, of “whatever nature or description,” upon a light and power business. There can be no serious doubt that by requiring SCL to pay a fixed fee of six percent of its revenues as part of each of their franchise agreements, the Cities violated the plain meaning of RCW 35.21.860(1). Because the majority holds to the contrary, I dissent.

¶68 The majority primarily attempts to support its holding by applying an unduly narrow interpretation to the phrase “any other fee or charge of whatever nature or description.” RCW 35.21.860(1). First, the majority suggests that the meaning of this phrase must be limited to other fees or charges that a “city may impose ... in exercising its governmental powers of taxation and regulation.” Majority at 147. The majority supports this assertion by reference to five exceptions to RCW 35.21.860(1), found at RCW 35.21.860(1)(a)-(e). Majority at 146-47. Those exceptions generally reference taxes and regulatory fees, not voluntary exchanges of valuable consideration. Thus, the majority concludes, such voluntary exchanges must not come within the scope of RCW 35.21.860(1)’s prohibition. Majority at 147.

¶69 However, the majority’s reasoning here is difficult to reconcile with its earlier holding that the plain meaning of “impose” extends beyond the imposition of taxes and the like to include voluntarily assumed payment obligations. Majority at 141. If, as the majority concedes, a franchise fee “imposed” by contract comes within the prohibition of RCW 35.21.860(1), then “any other fee or charge of whatever nature or description” similarly imposed must also, logically, be covered.

*164¶70 Furthermore, the majority’s attempt to limit RCW 35.21.860(1)’s prohibition to other taxes or regulatory fees is belied by the very language that the majority purports to be interpreting. RCW 35.21.860(1) plainly provides that its prohibition extends to “any other fee or charge of whatever nature or description.” (Emphasis added.) If the legislature meant to limit the scope of RCW 35.21.860(1)’s prohibition to other taxes or regulatory fees, then it could easily have written the statute accordingly. That the legislature did not use such limited language indicates that it did not intend such a limited meaning. See Morgan v. Johnson, 137 Wn.2d 887, 891-92, 976 P.2d 619 (1999) (“‘[T]he court should assume that the legislature means exactly what it says.’ ” (quoting State v. McCraw, 127 Wn.2d 281, 288, 898 P.2d 838 (1995))).

¶71 Next, the majority suggests that the phrase “any other fee or charge of whatever nature or description” should be construed as limited to fees or charges in the nature of franchise fees, i.e., fees directly related to occupation of the public streets. Majority at 147-49. Again, the majority’s narrow reading of the statute cannot be reconciled with the statute’s express language. RCW 35.21.860(1) prohibits “any other fee or charge of whatever nature or description.” (Emphasis added.) The legislature could easily have written RCW 35.21.860(1) to prohibit “franchise fees or any other similar fees or charges.” It did not. In fact, the legislature provided to the contrary, expressly enacting a broad prohibition on charges ultimately paid by consumers.

¶72 As support for its conclusion that “any other fee or charge of whatever nature or description” means other charges similar to franchise fees, the majority points to a 2000 amendment to RCW 35.21.860(1), which added the language “ ‘or service provider for use of the right of way.’ ” Majority at 149. The majority’s reliance on this added language is misplaced. RCW 35.21.860(1) currently provides, in pertinent part:

*165No city or town may impose a franchise fee or any other fee or charge of whatever nature or description upon the light and power, or gas distribution businesses, as defined in RCW 82.16.010, or telephone business, as defined in RCW 82.04.065, or service provider for use of the right of way, except [exceptions not relevant].

(Emphasis added.) The plain language and grammatical structure of this provision demonstrate that the phrase “for use of the right of way” was intended to modify only the term “service provider.” RCW 35.21.860(1). Specifically, the use of the word “or” and the placement of commas surrounding the entire phrase “or service providers for use of the right of way” evidences the legislature’s intent to limit the impact of this phrase. Id. Since “service provider” is expressly defined, for purposes of RCW 35.21.860(1), as a company providing telecommunications or cable television services to the general public, RCW 35.99.010(6),6 the final phrase of RCW 35.21.860(1) is essentially irrelevant to the present case.

¶73 The majority suggests that the addition of the “ ‘for use of the right of way’ ” phrase supports its position because telecommunications providers, unlike the other businesses covered by RCW 35.21.860(1), do not necessarily occupy the public streets. Majority at 149. Thus, the majority claims, the addition of the phrase “ ‘for use of the right of way5 ” in relation to telecommunications service providers implies the existence of an otherwise generally applicable limitation on the scope of RCW 35.21.860(1)’s prohibition as to all of the other businesses covered thereby. However, the majority fails to explain why a provider of telecommunications services is more or less likely to occupy a public street than is a telephone business. Compare RCW 35.99.010(6), (7) with RCW 82.04.065(2), (4). Accordingly, the majority’s argument for an implied, general limitation *166on the scope of RCW 35.21.860(l)’s prohibition based on the language of its 2000 amendment is untenable.

¶74 The majority further attempts to supports its unduly narrow interpretation of RCW 35.21.860(1) by arguing that to interpret the phrase “ ‘any other fee or charge of whatever nature or description’ ” in accordance with its plain meaning would be “unreasonable and absurd” because it would “prohibit a city from receiving any payment in exchange for a special benefit conferred upon an electric utility independent from the right to use the public streets.” Majority at 149-50. However, the legislature has, appropriately, made this policy choice, concluding that the monetary charges permitted under the exceptions to RCW 35.21.860(1) sufficiently account for municipal needs while maintaining the statute’s core protection against burdensome charges to utilities with consequent higher rates for consumers. See RCW 35.21-.860(l)(a)-(c) (permissible taxes and fees). It is not for this court to dictate a different policy or take the legislature’s place by revising statutory language. Such revision should be proposed to the legislature, not the courts. State ex rel. Baisden v. Preston, 151 Wash. 175, 178, 275 P. 81 (1929).

¶75 To further support its contention that the charges imposed by the Cities are permissible despite RCW 35.21-.860(1)’s prohibition on “any other fee or charge of whatever nature or description,” the majority relies on a liberal construction of the Cities’ proprietary power to form electric utilities. Majority at 154. Of course, the Cities here did not actually form utilities; they were persuaded (in part by these payments) not to do so. More importantly, as the majority concedes, “[i]n exercising its propriety power [to form an electric utility], a municipality may not act . . . contrary to express statutory . . . limitations.” Majority at 154. In imposing the charges at issue here, the Cities violated the plain language of RCW 35.21.860(1). Therefore, these charges cannot be justified as valid exercises of the Cities’ power to operate electric utilities, no matter how liberally that power is construed.

*167¶76 The majority similarly cites to the broad power of municipalities to contract in order to support its decision. Majority at 154-55. However, the majority necessarily concedes that this power extends only to making contracts that do not conflict with relevant statutory authority. Id. Because RCW 35.21.860(1) specifically prohibits the contractual provisions at issue in this case, those provisions cannot be deemed valid exercises of the Cities’ power to contract. That these contracts might be found beneficial to either the Cities and/or SCL does not make them lawful. Majority at 155-58.

¶77 Finally, the majority concludes its analysis by engaging in an unnecessary evaluation of this court’s prior decision in King County v. City of Algona, 101 Wn.2d 789, 681 P.2d 1281 (1984). Majority at 159-60. While petitioners did contend in their complaint that the charges at issue constituted unconstitutional taxation of another municipality’s department, this court granted review solely as to the trial court’s grant of summary judgment for the Cities regarding the alleged violation of RCW 35.21.860(1). While acknowledging the limited scope of our review, see majority at 139, the majority goes on to analyze and suggest substantial limitations for this court’s holding in Algona. Majority at 159-60. This portion of the majority’s opinion is unhelpful dicta that is inappropriate given the question presented.

Conclusion

¶78 In enacting RCW 35.21.860(1), the legislature sought to protect consumers by expressly prohibiting “a franchise fee or any other fee or charge of whatever nature or description” such as the six percent charge here. The majority offers no persuasive rationale for its decision to interpret the language of RCW 35.21.860(1) in a manner that directly conflicts with its plain meaning. I would apply the statute as written by the legislature and hold that the six percent payment obligations imposed by the Cities on *168SCL, and ultimately on consumers, are unlawful and invalid. Therefore, I dissent.

Alexander, C.J., and Sanders, J., concur with J.M. Johnson, J.

SCL is a “light and power business,” as defined in RCW 82.16.010(5), for purposes of RCW 35.21.860.

The term “service provider” was added to RCW 35.21.860 by Laws of 2000, ch. 83, § 8. “Service provider” was defined in section 1(6) of that same legislation as a company providing telecommunications or cable television services to the general public. That definition was later codified at RCW 35.99.010(6).