COUNTIES ‑- TAXATION ‑- INITIATIVE AND REFERENDUM ‑- INITIATIVE ON ADDITIONAL LOCAL SALES AND USE TAX
Where the voters of a home rule charter county possesses the general power of initiative, § 19, chapter 49, Laws of 1982, 1st Ex. Sess. requires that the "special initiative procedure" provided for in that section conform to the requirements of the county's initiative procedure.
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October 28, 1982
Honorable Norm Maleng
516 Third Avenue
Seattle, Washington 98104
Cite as: AGO 1982 No. 13
ATTN: Richard H. Holmquist
Chief Civil Deputy
This is written in response to your request for our opinion on the following question:
"Where the voters of a home rule charter county possess the general power of initiative, does Section 19, Chapter 49, Laws of 1982, 1st Ex. Sess. require that the 'special initiative procedure provided for in that section conform to the requirements of the county's initiative procedure?"
We answer this question in the affirmative.
The full text of § 19, chapter 49, Laws of 1982, 1st Ex. Sess. reads as follows:
"Every county and city imposing a tax under section 17(2) of this act shall provide for a special initiative procedure or an ordinance imposing or altering each tax. Such a special initiative procedure shall subject the ordinance imposing or altering the tax to approval or [[Orig. Op. Page 2]] rejection by the voters. If the voters of the county or city otherwise possess the general power of initiative on county or city matters, this special initiative procedure shall conform to the requirements of that procedure. If the voters of a county or city do not otherwise possess the general power of initiative on county or city matters, this special initiative procedure shall conform to the requirements and procedures for initiative petitions provided for code cities in RCW 35A.11.100."
In turn, the essence of § 17(2) of the act is an authorization, to any county or city, to impose a further local sales and use tax at a rate of up to 5/10ths of one percent in addition to the local sales and use tax previously authorized by § 4, chapter 94, Laws of 1970, 1st Ex. Sess. (cf., RCW 82.14.030(1)). And clearly, the subject legislation applies to a home rule charter county in the same manner, and to the same extent, as it applies to any other county or city, home rule charter, code or otherwise.
The only distinction to be noted is that, as recognized by § 19,supra, in some cases the particular county or city is already subject either to a charter provision or a statute providing for the enactment of local ordinances (including those repealing existing ordinances) by the initiative process while in other instances it is not. Accordingly, in the case of these counties or cities which thus have the initiative, the legislature has simply directed that the "special initiative procedure"‑-relative to an ordinance or resolution imposing an additional local local sales and use tax increment under § 17(2)‑-be in conformity with that existing procedure. On the other hand, in the case of those other counties or cities which do not now have such an initiative procedure in place, the legislature directed that,
". . . this special initiative procedure shall conform to the requirements and procedures for initiative petitions provided for code cities in RCW 35A.11.100."
The thrust of your question, as we understand it from your letter, is whether § 19,supra, truly prescribes a "special initiative procedure" which may be invoked in response to a local ordinance imposing the additional tax provided for by § 17(2) of chapter 49, supra, at any time thereafter. Or, instead, does it actually contemplate a referendum process to be invoked for the purpose of rejecting the ordinance imposing the additional tax only within a limited period of time following its adoption?
[[Orig. Op. Page 3]]
By your letter you have also indicated, briefly, your own analysis and at least tentative conclusion, saying:
"Our own analysis of this issue had led us previously to conclude that when the legislature repeatedly used the artful term 'initiative' throughout Section 19 of the act, it meant precisely what it said. Apart from anything else, comparison of the critical language of Section 19 with the parallel phrasing of Section 10, Chapter 42, Laws of 1982, 1st Ex. Sess. (signed into law the same day as Chapter 49) where the legislature used the word 'referendum' instead of 'initiative' supports this conclusion, we believe."
We, as well, have already come to the same conclusion. Specifically, in a memorandum opinion dated October 25, 1982 to the State Department of Revenue, copy enclosed, we also said that we believe § 19, supra,
". . . should be taken to mean precisely what it says and, thus, to call for an initiative, rather than a referendum, procedure. . . ."
And by that, we then went on to explain,
". . . we mean a procedure which allows the people, at any time after passage of the tax imposing resolution or ordinance, to either ratify it or repeal it by the defeat or passage of an initiative. Under a referendum procedure, on the other hand, the action of the people would, instead, be more in the nature of a veto which could be exercised only for a limited period of time."
We also noted, in our analysis of the question,
". . . one further difference between the initiative and referendum process. Under an initiative procedure the law (in this case, a local ordinance) which is subject to amendment or repeal by the people through use of an initiative is, in the mean time, fully in effect. On the other hand, under a referendum procedure the subject law remains in suspense until the referendum election is conducted‑-at which time it then either goes into effect or is, in essence, vetoed. CF.,Berndson v. Graystone Materials Co., 34 Wn.2d 530, 209 P.2d 326 (1949)."
[[Orig. Op. Page 4]]
We then observed, by way of an explanation of the legislature's action, that:
"This last noted difference between an initiative and a referendum, in turn, suggests a plausible reason for the legislature's choice, in this instance, of an initiative rather than a referendum process. Under a referendum process, the underlying tax imposition ordinance would not go into effect until voted upon, assuming that a referendum petition was filed within the applicable, limited, period of time for the filing of a referendum. Conversely, under an initiative procedure, the tax-imposing ordinance may go into effect upon being enacted‑-subject, then, only to possible subsequent repeal by the people."
Bearing that in mind, however, we next acknowledged,
". . . that the language in § 19, supra, which refers to voter approval or 'rejection' does, in that respect, speak in terms which sound more like a referendum procedure, and that the provisions of existing local law (RCW 35A.11.100 and RCW 35.17.240 ‑ 35.17.360) which are incorporated by reference in the section deal with both initiatives and referenda. . . ."
In addition, we expressed our awareness,
". . . that some city and county associations have taken the position that § 19 should be read to allow only for a voter referendum petition on the ordinance during a limited period following its enactment."
Nevertheless, we then noted and explained the fact that.
". . . the legislature in § 19 pointedly, and repeatedly, used the word 'initiative' rather than 'referendum'‑-not merely once or twice but a total of six times. . . ."
And then, finally, we referred to a point which you have also noted; namely,
". . . that in the same session, only a few days prior to the passage of chapter 49,supra, the legislature utilized the same general process for voter participation with, however, significantly contrasting language demonstrating [[Orig. Op. Page 5]] quite clearly that it knew how to say 'referendum' when that is what it meant. . . ."
Our reference, like yours, was to § 10, chapter 42, Laws of 1982, 1st Ex. Sess. by which the legislature provided for voter approval of certain general obligation bonds in language as follows:
". . .
"In addition, the ordinance or resolution authorizing the issuance of such general obligation bonds shall be subject to potential referendum approval by the voters of the issuing entity when the bonds are part of the non-voter approved indebtedness limitation established pursuant to RCW 39.36.020. If the voters of the county or city issuing such bonds otherwise possess the general power ofreferendum on county or city matters, the ordinance or resolution shall be subject to that procedure. If the voters of the county or city issuing such bonds do not otherwise possess the general power ofreferendum on county or city matters, the referendum shall conform to the requirements and procedures forreferendum petitions provided for code cities in RCW 35A.11.100." (Emphasis supplied)
Accordingly, based on all of these factors evidencing apparent legislative intent, we concluded our memorandum opinion to the Department of Revenue as follows:
"Our conclusion, therefore, is that in its reference to a special initiative procedure in § 19,supra, the legislature intended to make a particular process described as a 'special initiative procedure' applicable to all counties and cities electing to impose the additional, local, sales and use tax authorized by § 17(2) of the same act. Conversely, the legislature did not merely intend, instead, to require that a local ordinance imposing this tax be made subject to a referendum process during only a limited period of time following its enactment."1/
[[Orig. Op. Page 6]]
It is, therefore, on that same basis that we now answer your question (as above stated) in the affirmative. Where the voters of a home rule charter county possess the general power of initiative, § 19, chapter 49, Laws of 1982, 1st Ex. Sess. does, indeed, require that the "special initiative procedure" provided for in that section conform to the requirements of the county's initiative procedure.
Moreover, having so answered your inquiry, we believe it appropriate, as well, to reiterate a further portion of the same October 25, 1982 memorandum opinion by which we dealt, in addition with the following related question:
"What steps should a county or city take in providing for the 'special initiative procedure' in connection with its adoption of an ordinance imposing, or altering, the additional sales tax provided for in § 17(2) of chapter 49, supra?"
Our response to that question, here set forth in full, was as follows:
"Let us attempt to answer this question in, basically, three stages.
"(1)First, as we view it, the cleanest and simplest way to go would be through the enactment, by each county or city, of a separate ordinance providing for the 'special initiative procedure' which is contemplated by § 19,supra. Such an ordinance should, in essence, say that if, at any time thereafter, the subject county or city enacts a resolution or ordinance imposing the additional tax, or alters such a previously adopted ordinance or resolution, that action will be subject to voter ratification or repeal through an initiative procedure‑-either the initiative procedure generally applicable to the particular class of county or city [[Orig. Op. Page 7]] involved or, in the absence of such an existing procedure, in accordance with the initiative procedure which governs code cities as provided for in RCW 35A.11.100 and related statutes.
"(2) Secondly, and alternatively, we would suggest that if the foregoing is not done there should, at least, be a provision in the tax-imposing ordinance itself which, in similar terms, spells out the requisite details of an initiative process for any later ratification or repeal by act of the people.
"(3) And third, in the event that neither of the foregoing steps has been taken with respect to a tax-imposing ordinance which may, already, have been adopted, our recommendation to the subject county or city would be to now adopt, as expeditiously as possible, a general ordinance such as we outlined in our first recommendation, above, with however, express language contained therein declaring the ordinance to be applicable both prospectively and retrospectively."
We trust that the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/It is, furthermore, interesting to note that if, indeed, the legislature's intended reference was, instead, to a referendum procedure, the provisions of § 19, supra, would be at least technically inoperative in the case of those counties or cities which do not have the initiative or referendum under their charters or applicable statutes. RCW 35A.11.100, which sets forth the applicable procedures in those instances, refers to RCW 35A.11.090 as an exception and that statute, in turn, exempts from thereferendum process,inter alia, ". . . ordinances authorizing or repealing the levy of taxes; . . ."