Monorail tax debated in court

Published 9:00 pm Tuesday, September 27, 2005

OLYMPIA – The tax that bankrolls Seattle’s troubled monorail project should be thrown out despite approval by the city’s voters, a lawyer for monorail critics told the state Supreme Court on Tuesday.

The monorail’s vehicle excise tax – and the governing board that administers the project – were created by a citywide vote in 2002. But those voters didn’t have legal authority to cede their tax decisions to the monorail board, attorney William Severson said.

“Taxation without representation – that’s what we had a little battle with England about a number of years ago,” Severson told the justices. “It applies to all levels of government.”

An attorney for the Seattle Monorail Project, which recently lost the support of Seattle’s mayor and City Council, replied that the tax is lawful because its parameters were endorsed by city voters.

Officials have closely followed the voters’ instructions about what to tax, how much they collect and what they should buy, said Paul Lawrence, representing the monorail board.

“The notion that that’s not representative taxation is, frankly, absurd to us,” he said after the hearing.

Seattle’s decades-long hope for a monorail to clear traffic from congested city streets has been thrown into doubt. Earlier this month, Seattle Mayor Greg Nickels criticized the monorail board’s newest financing plan for the $2 billion project and withdrew its right of way to build over city streets. A week later, the City Council approved a resolution saying the city would deny street-use permits for the monorail.

Monorail leaders responded by hurrying a proposal for a shorter, less costly line onto the November ballot. It will be the fifth time in a decade that city voters have been asked to keep the plan for an expanded monorail alive.

Meanwhile, opponents are asking the Supreme Court to declare the monorail’s 1.4 percent vehicle excise tax invalid and order refunds, along with attorney’s fees.

In response to a question from Chief Justice Gerry Alexander, Severson said the board’s lack of authority stems from the appointments of some original monorail board members by a predecessor agency. Because those officials were not elected or appointed by an elected official, the panel’s ability to assume taxing responsibilities was nullified, he said.

“Isolating those officials from public accountability creates a tremendous risk for responsible government,” he told the court.

After the hearing, monorail attorney Ross Macfarlane said that argument falls flat because the officials in question were, at some point, appointed by elected officials.

Monorail critics also say the excise tax is an unlawful property tax, but the board’s attorneys dismissed that argument, saying that legal question was settled decades ago in Washington state.