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Reg’l Transit Auth. v. Miller, 156 Wn.2d 403 (Wash. 2006) was the occasion for the Washington Supreme Court’s latest decision involving state eminent domain power and citizens’ private property rights. The Court’s 5-4 vote constituted another significant ruling in favor of government interests over private property owners. 

Primarily at issue in Miller were statutory and administrative requirements for public notice that condemning authorities must follow in order to initiate proceedings against a private property owner. The Central Puget Sound Regional Transit Authority (Sound Transit) was statutorily required to adopt a procedure for notifying the public of agency hearings involving consideration of condemnatory actions. RCW 35.22.288 provides: “Such procedure may include, but not be limited to, written notification to the city’s official newspaper, publication of a notice in the official newspaper, posting of upcoming council meeting agendas, or such other processes as the city determines will satisfy the intent of this requirement.” The Sound Transit Board’s implementing resolution states: “Whenever feasible, the Board Administrator shall furnish the Agenda for meetings of the Board and Committees to one or more local newspapers of general circulation in advance of such meetings.” However, Sound Transit never notified any newspaper or otherwise physically posted any information concerning its upcoming meeting at which it approved condemnation of petitioner Millers’ property for a future bus parking lot. Instead, Sound Transit simply posted a message on its website about an upcoming meeting where the Sound Transit Board would consider acquiring certain property. The web posting did not specify what particular parcels of property would be considered.

The Miller majority’s opinion, penned by Justice Mary Fairhurst and joined by Justices Bobbi Bridge, Charles Johnson, Barbara Madsen and Susan Owens, was the first court decision in the nation to hold web posting sufficient under such circumstances. The majority discussed in a footnote consideration of Sound Transit’s compliance with its own statutorily-required notice procedures. The majority maintained that “the dissent does not cite any authority to support a claim that the internal procedures govern our analysis.” The majority also rejected the need for identifying particular parcels of property to be considered for condemnation. The majority also rejected dissenting Justice James Johnson’s insistence that trial courts enter written findings of fact and conclusions of law that form the basis of their decision. Finally, the majority reiterated a standard of judicial review in eminent domain cases that should show “great deference to legislative determinations.”

Chief Justice Gerry Alexander filed a dissent taking exception to the majority’s construction of the public notice statutes. Joined by Justice Tom Chambers, the Chief Justice concluded that “Sound Transit did not adequately inform affected parties before authorizing condemnation” and that internet-only posting did not satisfy the public notice statute. The Chief Justice wrote: “Due process demands that government err on the side of giving abundant notice when it seeks to take property.”

Justice James Johnson filed a lengthier and stronger dissent, joined by Justice Richard Sanders. (Also joined in result only by Justice Chambers). Looking to the statute, Justice Johnson insisted that the term “posting” always referred to the posting of notice in a physical place or affected area, but not to virtual posting on a website. His dissent also took strong exception to the lack of any specific mention of the Miller property in the website posting.

Justice Johnson also insisted that Sound Transit cannot ignore its own procedures because they were statutorily required. “Agencies and municipal corporations must comply with internal procedures that are promulgated pursuant to statutory requirement. Compliance is a necessary implication of a statutory mandate.”

Justice Johnson’s dissent likewise took aim at the majority’s standard of judicial deference to condemning authority decision-making. He opined that the majority’s standard flies in the face of the Washington Declaration of Rights’ clear provision: “Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public.”

Justice Johnson criticized the majority for overlooking erroneous factual assertions made by Sound Transit during the condemnation process. For example, the Justice suggested that Sound Transit officials had previously and incorrectly claimed condemnation of the Millers’ property was necessary because the property was contaminated and had Superfund issues.

Additionally, Justice Johnson suggested the lack of specific written findings supporting public necessity of the condemnation by either the Sound Transit Board or the trial court judge at the condemnation hearing. Justice Johnson insisted that written findings should be required in light of the importance of public property rights. He concluded that “[d]eference of the courts to agency decisions which are procedurally flawed and based on facts known to be false diminishes public confidence in government and in the courts.”

The Miller majority contained five justices. In late 2005, a seven-member majority sided with the condemning authority and deferential standards of judicial review for public use in HTK Management, L.L.C. v. Seattle Popular Monorail Authority (Wash. 2005). Whether Miller constitutes a future shifting of eminent domain jurisprudence for Chief Justice Alexander and Justice Chambers (both of whom were in the HTK majority), is an open question. Justices Sanders and James Johnson were the dissenters in HTK.

The Millers have filed a motion for reconsideration. Such motions are rarely granted. The Court’s decision on the Millers’ motion is pending at the time of this publication. Also pending as of this publication is the Court’s decision in Utility Dist. No. 2 of Grant County v. North American Foreign Trade Zone Industries, L.L.C., et al. The Grant County case involves most of the same public notice and public use issues that were present in Miller.

In the recently decided case of Larson v. Seattle Popular Monorail Auth. (Wash. 2006), a majority of the Washington Supreme Court upheld the taxing authority of the Monorail against several constitutional challenges. Seattle voters recently voted to dissolve the Monorail authority, but the Court’s decision in Larson let stand the Monorail Board’s application of taxing power.

Justice Barbara Madsen wrote the Court’s majority opinion, joined by Chief Justice Gerry Alexander and Justices Bobbi Bridge, Tom Chambers, Mary Fairhurst, Charles Johnson and Susan Owens. Justice Madsen’s opinion for the majority concluded that Monorail’s Board could properly wield taxing power even though only two of its nine members were subject to popular elections. According to the majority, the legislature may delegate taxing power to municipal corporations that are not elected so long as there are other procedural safeguards in place. Here, the majority claimed that the statutorilydefined purpose of the Monorail, the tax-rate ceiling provided in the Board’s enabling legislation and procedures concerning the collection of the tax were sufficient.

Justice James Johnson filed a dissent, joined by Justice Richard Sanders. In his dissent, Justice Johnson zeroed in on the delegation of taxing authority to the Monorail Board. He concluded the unelected Board inappropriately wielded legislative taxing power, violating the separation of powers principle of “no taxation without representation.”

Citing the American Revolution, the Declaration of Independence and early U.S. Supreme Court opinions, James Johnson insisted that taxation has been understood as a strictly legislative function. He then traced through early Washington Supreme Court precedents establishing that citizens may not be taxed by local authorities that do not have jurisdiction over them and are not subject to their vote. Furthermore, Justice Johnson wrote that, under the Washington Constitution, “the legislature may make such delegation only to elected bodies that are directly accountable to citizens” (emphasis in original). In his dissent, Justice Johnson insisted that the taxing power cannot be wielded by unelected bodies even if those bodies are created by a popular vote because that power would impermissibly bind future generations.

Justice Johnson then cited Justice Sanders’ dissenting opinion in the Washington Supreme Court’s last case implicating improper delegation of taxing power, Granite Falls Library Capital Facility Area v. Taxpayers of Granite Falls (1998). In that case, Justice Sanders insisted that “taxation without representation was not popular with the colonists then and is unconstitutional today.” Justice Johnson took the Granite Falls dissent a step further by insisting on a bright-line standard: only elected officials may wield taxing power. Popular elections is the only sufficient safeguard to protect the people from abusive taxation, not various other items delineated devised by the court post hoc. Justice Madsen and Chief Justice Alexander had joined the Granite Falls dissent. By their respective authoring and concurring with the majority opinion in Larson they appear to have changed their position.

Additionally, Justice Johnson questioned the validity of the Monorail’s vehicle tax as a genuine excise tax, as opposed to an impermissible ad valorem tax. The Court had more directly addressed this precise question in Sheehan v. Central Puget Sound Regional Transportation Authority (Wash. 2005). Justice Johnson dissented in that case (being joined by Justice Sanders), and in Larson he simply reiterated his wariness of the Monorail’s vehicle excise tax in that regard. Furthermore, Justice Johnson challenged the majority’s upholding of the Monorail’s taxing schedule. He contended the schedule was inflated far above the market value, which voters would have expected when approving the measure created the Monorail authority. Monorail had even stipulated to this public expectation at trial. In addition, Justice Johnson concluded that the schedule should have been repealed when the state’s voters decided to do away with that same schedule for state tax collection purposes in the same election where Seattleites voted to establish the Monorail Authority.

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