Arthur T. Lane, et al. v. The City of Seattle

In this case we must decide who will pay for fire hydrants in the city of Seattle and



its suburbs. Seattle Public Utility (SPU) used to pay for them, passing the



cost along to its ratepayers. The ratepayers object and want Seattle to foot



the bill. If Seattle has to pay for its hydrants, it wants Lake Forest Park to



pay for the hydrants in Lake Forest Park. Lake Forest Park, in turn, wants



fire districts in Lake Forest Park to pay. The fire districts want someone,



anyone, else to pay. On top of all that, the ratepayers want interest on



improper past hydrant payments they recover and want Seattle's new tax on



SPU declared illegal. Finally, the fire districts claim they are no longer even



parties to the litigation.



We affirm the trial court on most issues. The court correctly held that



providing fire hydrants is a government responsibility for which a government



must pay, that Seattle's new tax on SPU is constitutional, and that



municipality Lake Forest Park must pay for hydrants within its boundary.



The trial court erred only when it failed to give the claiming ratepayers the



statutory interest rate on the invalid hydrant fees.



I



For years, SPU paid for hydrants by charging its water ratepayers a flat



hydrant fee added to their water charges. In 2003, this court held that Seattle



City Light could not charge its ratepayers for streetlights. Providing



streetlights is a government function, and the court held that a municipal



government must pay out of the city's general fund. Okeson v. City of



Seattle, 150 Wn.2d 540, 78 P.3d 1279 (2003). Recognizing the legal



equivalence between hydrants and streetlights expressed in that decision (and



argued by the city), Seattle had SPU stop charging ratepayers for hydrants.



Instead, Seattle began to pay for the hydrants out of its general fund. To



make up the cost, Seattle raised taxes on SPU, which led SPU to raise rates



on water ratepayers to make up the difference.



SPU also provides local hydrants to areas outside the city of Seattle



and concluded that those municipal governments should pay their share. SPU



sent a bill for hydrants to Lake Forest Park, Burien, and to local fire districts,



all of which refused to pay. SPU then sued Lake Forest Park and Burien for



payment and later joined the fire districts.



Meanwhile, a class made up of ratepayers ("Lane et al.," as



representatives, hereinafter "Lane") sued SPU for hydrant payments made by



ratepayers for the preceding three years. The statute of limitations limits that



claim to three years. RCW 4.16.080(6). Lane also sued Seattle to enjoin the



newly raised city taxes on SPU, which had resulted in SPU's raising its rates



on ratepayers.



After a lengthy pretrial process, each party moved for summary



judgment. The trial judge held (1) SPU could not charge ratepayers to pay



for hydrants; (2) Seattle's tax on SPU was valid; (3) SPU had to pay back the



Lane ratepayers, but only at one percent interest; (4) Lake Forest Park and



Burien had to pay Seattle for their share of the hydrant costs; and (5) the fire



districts had no obligation to pay. Each of these rulings has been challenged.



We granted direct review.



After review, but before oral argument, Burien decided it had spent too



much money litigating and withdrew. Thus, Burien was the only party



originally stating a claim against the fire districts. Without an opposing party



appealing their judgment, the fire districts are no longer parties, and we do



not reach the issue between Burien and the fire districts. The remaining



issues are resolved below.



II



A. SPU Cannot Charge Ratepayers for Hydrants, which Are a General Government Responsibility



"No tax shall be levied except in pursuance of law; and every law



imposing a tax shall state distinctly the object of the same to which only it



shall be applied," Wash. Const. art. VII, § 5. If providing hydrants is a



government function, and if charging ratepayers for those hydrants is a tax,



not a fee, the charge violates this part of the constitution. Seattle imposed a



"charge" rather than a tax, which it was not authorized by law to impose.



We treat governments differently if they are acting as governments or



as businesses. Okeson, 150 Wn.2d at 549. We review most government



decisions to determine whether they had a rational basis and occasionally use



this standard to strike down a government decision. E.g., Associated



Grocers, Inc. v. State, 114 Wn.2d 182, 187-88, 787 P.2d 22 (1990);



O'Meara v. Wash. State Bd. Against Discrimination, 58 Wn.2d 793, 799,



365 P.2d 1 (1961); In re Hendrickson, 12 Wn.2d 600, 612, 123 P.2d 322



(1942). In contrast, we review business decisions under the business



judgment rule and infrequently reverse a business decision. See Scott v.



Trans-System, Inc., 148 Wn.2d 701, 709, 64 P.3d 1 (2003). We must first



decide if providing hydrants is a government responsibility or a proprietary



responsibility.



It is conceded that Okeson decides that question. We held that



streetlights are a government function and strongly suggested that providing



hydrants is the same. We confirm that holding today.



The next step is deciding whether charging ratepayers to pay for



hydrants was a tax or a fee, since a city must be authorized by statute to



impose a tax but has broader power to impose a fee. Okeson, 150 Wn.2d at



550. We have created a three-factor test to decide whether a charge is a tax



or a fee; no single factor determines the matter. Covell v. City of Seattle, 127



Wn.2d 874, 879, 905 P.2d 324 (1995). The three factors are the purpose of



the cost, where the money raised is spent, and whether people pay the cost



because they use the service. Id.



Our decision here directly follows our decision in Okeson. There, the



purpose of the cost was to increase revenue for the city and not to regulate



the installed streetlights, indicating a tax. Okeson, 150 Wn.2d at 553. The



money did go into a streetlight fund, which made it more like a fee. Id. But



ratepayers bore the same streetlight cost no matter how much electricity they



used, leaning toward tax. Id. at 554. Since all citizens may use and benefit



from lighted areas, we held the charge to be an invalid tax. Id.



Here, the purpose of charging ratepayers a hydrant charge is also to



increase revenue for the city and not to regulate hydrants or water usage,



indicating a tax. The money goes to a hydrant fund, making it more like a



fee. But, ratepayers pay the same fixed hydrant cost whether they use



hydrants or not, indicating a tax. All benefit by having water available to put



out fires. Moreover, we had expressly discussed fire hydrants as an example



of government services in Okeson. Seattle had argued that the Okeson



streetlights were just like hydrants, and SPU had always charged ratepayers



for hydrants. The hydrant issue was not before us, but the argument of



Seattle and implication of our decision were clear: for purposes of deciding a



tax or fee, hydrants are very much like streetlights. Id. at 552. As in Okeson,



the charge here is a tax.



Lake Forest Park tries to distinguish Okeson. It points out that water



companies within cities must, by statute, provide hydrants (RCW 80.28.010),



but no similar law requires electric companies to provide streetlights. This is



not determinative. After all, state law requires police to report accidents



(RCW 46.52.070) and school districts to educate special education children



(RCW 28A.155.040), but these laws do not justify taxing such transactions.



Lake Forest Park also claims a relationship between hydrant charges



and user benefit by pointing out that houses near hydrants may have lower



insurance rates. This might be more persuasive if SPU charged a different



cost based on proximity to hydrants. The direct benefit of a hydrant system is



enhanced fire suppression, which is a shared benefit, and the record shows no



differential.



Amici also point to three cases where Washington courts upheld



charges on customers when first connecting to waterworks. Landmark Dev.,



Inc. v. City of Roy, 138 Wn.2d 561, 980 P.2d 1234 (1999); Hillis Homes,



Inc. v. Pub. Util. Dist. No. 1, 105 Wn.2d 288, 714 P.2d 1163 (1986); Irvin



Water Dist. No. 6 v. Jackson P'ship, 109 Wn. App. 113, 34 P.3d 840 (2001).



These cases are inapposite. One-time connection fees are different from



monthly hydrant charges. Connection fees capture start-up costs for new



customers, which are costs of the waterlines for water service. Hydrant fees



capture the costs of hydrants, which are government costs.



Finally, Lake Forest Park says, "the heights of irony will be scaled if



SPU can purchase art for its facilities and recover the cost in rates . . . but



cannot recover the cost of complying with lawful regulations." Br. of



Appellant Lake Forest Park at 9-10. This makes a mountain out of an irony



molehill. The question is not whether there will be art and hydrants, but who



must pay for them. Art for public facilities is a business expense (sometimes



imposed by statute or ordinance). Hydrants, like streetlights, are a



government expense for which a government must pay.



Thus, charges for hydrants are taxes, not fees. Since "[n]o tax shall be



levied except in pursuance of law; and every law imposing a tax shall state



distinctly the object of the same to which only it shall be applied." Wash.



Const. art. VII, § 5. Since Seattle did not declare the charge to be a tax until



2005 or state a lawful object of a tax or statutory authority, the imposition



was unconstitutional. See Okeson, 150 Wn.2d at 556.



B. Lane Has Standing To Challenge Seattle's Tax and SPU's Rate Increases, but Those Increases Are Not Invalid



Seattle recognized the legal similarity between streetlights and



hydrants, and so, in 2003, began paying for hydrants out of the general fund.



To pay, Seattle either had to raise tax revenue or take funds from other



services. The city council decided to raise revenue. It did so by raising the



tax rate on SPU from 10 to 14 percent. Since it wholly controls SPU, it had



SPU make up the difference by raising rates on customers. This situation has



a similar result for nearly every party involved as if SPU just charged



ratepayers for hydrants, with two exceptions: for residents of other areas,



their local government will repay the charges; for Seattle ratepayers, the tax



charge is now subject to referendum or political efforts to change, including



election of council members opposing the tax. Lane still objects. This issue



raises two subissues: whether Lane has standing and whether the tax is legal.



1. Lane Has Standing To Challenge Seattle's Tax on SPU



Seattle challenged Lane's standing to challenge the tax at trial but has



dropped the argument here. However, standing is a matter of our jurisdiction.



Without jurisdiction, we cannot hear a case, even if every party concedes



standing. High Tide Seafoods v. State, 106 Wn.2d 695, 702, 725 P.2d 411 (1986).1



To have standing, a party must be in a law's zone of interest and must



suffer some harm. Nelson v. Appleway Chevrolet, Inc., 160 Wn.2d 173, 186,



1 This rule is in flux. Compare Branson v. Port of Seattle, 152 Wn.2d 862, 879-80 & n.10, 101 P.3d 67 (2004) (Chambers, J., concurring) (a case may be heard even if a party lacks standing, as long as the issue is one of great public interest and well briefed), with High Tides, 106 Wn.2d at 702 (unanimously holding, "[i]f a plaintiff lacks standing to bring a suit, courts lack jurisdiction to consider it."). This case does not lend itself to deciding whether standing is jurisdictional in Washington, since neither party briefed the matter. And in any event, even if we are not required to raise the issue, we certainly have the discretion to. In re Recall of West, 156 Wn.2d 244, 248, 126 P.3d 798 (2006).



157 P.3d 847 (2007). Lane obviously has suffered harm; if his argument is



right, he must pay more in taxes than is legally allowed. His zone of interest



argument, though, is on shakier ground because he does not directly pay the



tax. After all, he is complaining about Seattle's tax on the water utility SPU.



If Lane has standing at all, it is only as a taxpayer interested in making his



government follow the law.



Lane points us to RCW 80.04.440, which allows any person harmed by



a public utility's unlawful acts to bring suit. Even though Lane's challenge is



to Seattle's tax on SPU and not to SPU's illegal acts, he rests on RCW



7.24.020, allowing for declaratory judgments of laws directly affecting a



party.



The standing issue here was analyzed in our decision in Nelson. There,



we held that a car buyer has standing to challenge a tax applied directly to his



dealer and seller because the buyer ultimately paid the tax. Nelson, 160



Wn.2d at 186. In the same way, the tax on SPU is passed on to Lane



directly, and so he is within the interest zone of RCW 80.04.440. He has



standing to challenge the tax and rate increase.



2. Seattle's Tax and SPU's Rate Increases Are Constitutional



Lane complains that Seattle is frustrating the holding in Okeson. He



argues that raising taxes on SPU and passing the increases along to ratepayers



is just the same as SPU charging ratepayers for hydrants. The problem with



the argument is that Okeson did not go so far as Lane would take it.



We voided the charge in Okeson because Seattle did not adopt the



charge as a lawfully authorized tax, violating article VII, section 5 of the state



constitution, and because a tax would have exceeded the six percent statutory



limit. Either reason was sufficient to support our holding in its entirety.



Okeson, 150 Wn.2d at 556-57. We simply held that if Seattle wanted to



charge Seattle City Light ratepayers for streetlights, it would have to comply



with statutes in enacting the tax (with the attendant possibility of a



referendum, Wash. Const. art. II, § 1(b)). Such tax, if adopted, would be



subject to the applicable statutes and a six percent total cap.



Seattle has complied here. It explicitly said it was taxing SPU, the tax



was properly adopted, and the tax expressly stated it was subject to



referendum. Also, the six percent limit referenced in Okeson does not apply



to taxes on businesses providing water. RCW 35.21.710; RCW



82.16.010(4). Seattle has statutory authority to impose this tax on SPU



(RCW 35.22.280(32)).



Lane's whole argument rests on our constitution's requirement that



"[n]o tax shall be levied except in pursuance of law; . . . ." Wash. Const. art.



VII, § 5. He argues that imposing a tax with the same effect as SPU's



charging ratepayers for hydrants is contrary to the law announced in Okeson.



This argument fails for the same reason as above. The law is not that



Seattle must charge for hydrants to a broad range of taxpayers. Instead, it is



simply that cities must have statutory authority to impose taxes and must



enact them properly as "taxes." This tax meets both requirements. The tax



and the resulting rate raise are lawful.



C. SPU Must Pay the Statutory Interest Rate on Back Payments



SPU illegally charged ratepayers for hydrant costs before 2005, so it



had to refund the charges for three years as allowed by the applicable statute



of limitations. Lane wants his payments to be with interest; Seattle opposes.



The trial court gave Lane interest at one percent. Lane appealed, saying he is



entitled to more. Seattle says he is entitled to none (or, at most, one percent).



Governments cannot be sued for money without their consent.



Architectural Woods, Inc. v. State, 92 Wn.2d 521, 526, 598 P.2d 1372



(1979). More to the point, local governments cannot be sued for interest



without the State's consent. Our Lady of Lourdes Hosp. v. Franklin County,



120 Wn.2d 439, 455-56, 842 P.2d 956 (1993). But absent sovereign



immunity, parties must pay 12 percent interest on judicial awards from the



time of judgment to the time of payment. RCW 4.56.110(4); RCW



19.52.020. They must also pay 12 percent on the time from the injury to the



judgment if the damages are liquidated, that is, if it is "possible to compute



the amount with exactness, without reliance on opinion or discretion." Prier



v. Refrigeration Eng'g Co., 74 Wn.2d 25, 32, 442 P.2d 621 (1968); RCW



19.52.020. The damages here are clearly liquidated because they are based



only on the amounts customers wrongly paid. So if SPU is not immune from



judgment, it must pay 12 percent interest on both the pre- and postjudgment



award.



Lane offers three reasons why he should be awarded statutory interest



on his refund payments from SPU, and if he is correct on any of them, he



receives interest at the judgment rate. His best argument is that a statute



waives immunity for claims against government-run utilities, allowing interest



on part of those claims.



RCW 80.04.440 allows people to sue water companies for "all loss,



damage or injury" resulting from an illegal act. On its face, "all loss"



includes interest. Depriving a party of money for a time deprives him of its



productive use during that time. "Justice delayed is justice denied" is literally



true for money. If a losing party has wrongfully kept another's money at 12



percent interest for six years before giving it back, it is the same as taking the



lost value. "All loss, damage or injury" includes interest on money



improperly taken or withheld.



Seattle argues that the statute does not include the word "interest."



Neither does it expressly include "medical bills" or "lost work time" or



"profits," but the phrase "all loss, damage or injury" has been held to include



those. See, e.g., Nat'l Union Ins. Co. of Pittsburgh, Pa. v. Puget Sound



Power & Light, 94 Wn. App. 163, 168, 175, 972 P.2d 481 (1999). Seattle



says we would have to infer state consent to interest payments from the



statute. However, "all loss, damage or injury" is clear, broad, and inclusive.



We have no authority to judicially amend the broad statute to read "all loss



(except interest)."



The trial court seems to have split the difference and held the statute



waived immunity for interest, but not for interest at the judgment rate.



Instead, the trial court gave one percent interest because the monthly amounts



were so small that a reasonable investor could have placed the money only in



a low interest account. We reject this approach for two reasons.



First, RCW 80.04.440 says nothing about a reasonably prudent



investor. It consents to suit for all "loss, damage or injury" and does not



exempt from those losses the usual judgment interest. Second, any



reasonably prudent investor test invites complex factual questions about



investment returns. The legislature has decided the number by setting the



statutory rate of 12 percent, RCW 4.56.110(4); RCW 19.52.020 (set for all



judgments), and we have no reason to deviate from it. "All loss" includes



interest at the judgment rate. SPU must pay back the payments at the



statutory rate.



D. Lake Forest Park Is Liable for Hydrant Payments



If Seattle must pay for hydrants located in Seattle, it asks Lake Forest



Park to pay for those hydrants located in Lake Forest Park. Seattle argues,



and the trial court held, that RCW 43.09.210 makes the cities liable. The



statute reads: "All service rendered by . . . one department . . . to another,



shall be paid for at its true and full value by the department . . . receiving the



same, . . . ." RCW 43.09.210. This law applies to services that one



government body provides for another, including when one city provides



another city with services.2 Cf. State v. Grays Harbor County, 98 Wn.2d



606, 608, 656 P.2d 1084 (1983) ("The word 'department' plainly refers to an



administrative division or branch of government, . . . ."). Since SPU provided



a service to Lake Forest Park, Lake Forest Park is liable for SPU's cost.



Moreover, SPU provided the hydrants because Lake Forest Park



required it to do so by ordinance. Lake Forest Park Mun. Code



15.04.015(A)(3). Since providing hydrants is governmental, see above, Lake



Forest Park also consented to pay for the hydrants when it passed this



requirement. True, Lake Forest Park passed the ordinance before Okeson,



but this does not avoid its liability.



Lake Forest Park would apply the three-part test from Covell to argue



that Seattle would be imposing a tax on another city, which it cannot do. The



Covell factors are the purpose of the cost: where the money raised is



allocated and whether the cities pay the cost because they use the service.



2 Otherwise, resident taxpayers of the providing city would be paying for services to others.



127 Wn.2d at 879.



The purpose of charging Lake Forest Park for hydrants is clearly to



raise money, indicating a tax. There is no evidence that the funds are



segregated, also leaning toward a tax. But, most importantly, here there is a



direct relationship between the costs charged and the service provided. Lake



Forest Park requires SPU to provide hydrants, and SPU is charging just for



the costs of the hydrants required by Lake Forest Park. We hold that the



hydrant charge to Lake Forest Park is not a tax, but rather a cost of providing



a government service, which Lake Forest Park must pay.



Lake Forest Park argues that if we require it to pay for hydrants, cities



may extend their utility services to other jurisdictions without consent and



then charge the cost. This possibility is speculative (and improbable). SPU



will not likely install fire hydrants where uninvited. Right-of-way problems



alone would block this eventuality. SPU operates in Lake Forest Park only



with that city's permission, and it is providing a service only Lake Forest



Park required.



Lake Forest Park also argues that even if it has to pay for hydrants, it



should have to pay only for costs before January 1, 2005. On that day,



Seattle's tax on SPU started. Under Lake Forest Park's theory, since Seattle



already recovered the costs of hydrants starting in 2005, it would get a



windfall if Lake Forest Park also had to pay. We reject this argument. RCW



43.09.210 draws no distinction that would exempt pre-2005 charges.



RCW 43.09.210 requires Lake Forest Park to pay for the hydrants



within its boundary.





* * *



http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=802041MAJ

In summary, we hold that (1) providing hydrants is a government



responsibility for which the general government of the area must pay;



(2) charging every SPU ratepayer a flat hydrant fee amounted to an improper



tax; (3) the ratepayers may recover past improper hydrant fees, together with



interest at the judgment rate; (4) Seattle's new tax on SPU is legal; and



(5) Lake Forest Park must pay for the hydrants within its boundary.