Washington Off Highway Vehicle Alliance v. State

J.M. Johnson, J.

¶35 (dissenting) — I disagree with the lead opinion’s holding in this case because the purported benefit of paying park employees from funds dedicated to auto gas taxes has no connection to the constitutional limit on use of such a gas tax for public roads. Thus, the legislature’s 2009 appropriation, while laudably saving the park employees’ jobs, constitutes an obvious end run around the explicit prohibitions found in article II, section 40 of the Washington Constitution. The historic distribution of nonhighway use gas tax was through grants by the Recreation and Conservation Funding Board (RCFB). Here, the legislature appropriated gas taxes from nonhighway and off-road vehicle activities (NOVA) funds directly to the Parks and Recreation Commission (Parks). The money was then used by Parks to pay a portion of the salaries and benefits of its park employees. Taxes paid on gas but not used for road vehicles under article II, section 40 of the Washington Constitution must have a specifically targeted benefit to identifiable taxpayers in order to comply with constitutional restrictions on the nonhighway expenditure of motor vehicle fuel tax revenue. In my view, payment of salaries and benefits for general park personnel does not provide such a targeted benefit. It is hard not to conclude this was a sham to fill budget problems of Parks (made in the same budget). Thus, I respectfully dissent.

ANALYSIS

¶36 The unambiguous language of article II, section 40 is inconsistent with the 2009 Parks appropriation. Article II, section 40 provides: *242Additionally, one valid highway fund purpose is the provision of “[r]efunds authorized by law for taxes paid on motor vehicle fuels . . . .” Wash. Const, art. II, § 40(d). There is an inherent tension between article II, section 40’s limit on expenditures and its allowance of refunds because of the possibility that the former could be used to circumvent the latter. In Northwest Motorcycle Ass’n v. Interagency Committee for Outdoor Recreation, 127 Wn. App. 408, 415-16, 110 P.3d 1196 (2005) (NMA), the Court of Appeals upheld the legislature’s practice of refunding motor vehicle fuel tax revenue through NOVA for off-road areas, i.e., to those people who use gasoline for nonhighway purposes. The legislature may have the power to enact such refunds under article II, section 40, but the current case is distinct from NMA.

*241All 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.

*242¶37 Here, the legislature decided to appropriate NOVA funds directly “ ‘to the state parks and recreation commission for maintenance and operation of parks and to improve accessibility for boaters and off-road vehicle users.’ ” Clerk’s Papers (CP) at 63 (quoting Engrossed Substitute H.B. 1244, § 944(4), at 241, 61st Leg., Reg. Sess. (Wash. 2009)). Parks then used the funds “to pay salaries and benefits for employees who operate and maintain the state parks____” CP at 98. Even if every state park featured a nonmotorized recreational facility (and they do not), this scenario is distinct from the specific distributive restrictions in place through NOVA where “[n]ot less than seventy percent may be expended for ORV [off-road recreational vehicle], nonmotorized, and nonhighway road recreation facilities.” Former RCW 46.09- . 170(2)(d)(ii) (2009) (recodified as RCW 46.09.520(2)(d)(ii)).

¶38 Unlike the challenged 2009 appropriation, NOVA historically provided a refund to the public with a specifically targeted benefit to affected taxpayers. Additionally, the RCFB acts as an oversight board to ensure that funds are spent as designated by the legislature. The 2009 appropriation, however, provided no documented benefit to those *243people who use gasoline for nonhighway purposes. Funding for the salaries and benefits of general park personnel is not targeted to the operation and maintenance of non-motorized and nonhighway road recreation facilities. Parks employees perform a number of different functions, and the actual benefit to affected taxpayers is difficult to quantify for constitutional purposes. Still, the law requires a refund under article II, section 40 to have a specifically targeted benefit to affected taxpayers in order to comply with constitutional restrictions.

¶39 The lead opinion overstates the required showing on the part of petitioners in order to prove that the statute violates the constitution. The legislature cannot override the restrictions of the constitution by simply arguing a challenger has not proved its complaint “ ‘by argument and research.’ ” Lead opinion at 234 (quoting Island County v. State, 135 Wn.2d 141, 147, 955 P.2d 377 (1998)); cf. Pierce v. King County, 62 Wn.2d 324, 332, 382 P.2d 628 (1963) (explaining that “ ‘mere acquiescence, regardless of the period thereof, cannot legalize a clear usurpation of power which offends against the constitution adopted by the people’ ” (quoting Forbes v. Hubbard, 348 Ill. 166, 180 N.E. 767, 771 (1932), overruled on other grounds by La Salle Nafl Bank v. City of Evanston, 57 Ill. 2d 415, 312 N.E.2d 625 (1974))). Accordingly, the legislature’s declaration that the 2009 appropriation “ ‘will benefit boaters and off-road vehicle users and others who use nonhighway and non-motorized recreational facilities’ ” may not be controlling— surely not on this court. Lead opinion at 231 (emphasis omitted) (quoting Laws or 2010, 1st Spec. Sess., ch. 37, § 936(4)).

¶40 The people of the state of Washington passed article II, section 40 because they wanted “ ‘to limit definitely the use of gasoline taxes and automobile registration fees to street and highway construction, maintenance and safety.’ ” Clerk’s Papers at 604 (quoting State of Washington Voters’ Pamphlet, General Election 47 (Nov. 7,1944)). An expansive *244definition of “refund” under article II, section 40 may be appropriate because of the administrative burden presented in refunding tax dollars to those people who use gasoline for nonhighway purposes, but the lead opinion goes too far in this case. We must preserve the constitutional limits on legislative expenditures found in article II, section 40 as adopted by the people. The people wanted to prevent the diversion of motor vehicle fuel tax revenue for nonhighway purposes. As with other constitutional provisions, our decisions must enforce this constitutional limit. Thus, I would find any future appropriations that are similar to the 2009 appropriation at issue in this case constitutionally invalid.

CONCLUSION

¶41 I would require any expenditure of gas tax purportedly not used on highway roads under article II, section 40 to have a specifically targeted benefit to the affected nonhighway taxpayers in order to comply with the constitutional restrictions on the expenditure of motor vehicle fuel tax revenue. In my view, the proposed benefit to nonhighway taxpayers in the 2009 appropriation for Parks employees’ salaries is so beyond attenuation as to be fiction. Thus, I would find any future appropriations that are similar to the 2009 appropriation at issue in this case constitutionally invalid.

C. Johnson, Chambers, and Stephens, JJ, concur with J.M. Johnson, J.