                                                                                       FILED
                                                                               COURT OF APPEALS
                                                                                    DIVISION if

                                                                              2015 AUG 26 PM 12: 54

                                                                              STATE OF WASHII#GTON
     IN THE COURT OF APPEALS OF THE STATfLYYOE                                            S         GTON
                                                                                      DEPUTY
                                                          DIVISION II

WILLIAM E. WALL, ESTATE OF JAMES H.                                              No. 46641 -4 -II
JACK,            by    and         through         its    Personal
Representative,           SHARON              A.      JACK        and

LINDA R. LEIBICH,


                                              Appellants,


            V.




THE STATE OF WASHINGTON, acting by                                         UNPUBLISHED OPINION
and    through         the     WASHINGTON                  STATE
LEGISLATURE                   and     JAMES           McINTYRE,
Treasurer of the State of Washington; BRIAN
 SONNTAG,              Auditor           of     the      State     of

Washington; and BRAD FLAHERTY, Director
of    the        Department         of   Revenue,         State    of

Washington,




        LEE, J. —       The estate of James Jack (the Estate) appeals the superior court' s order granting

summary judgment to the State of Washington, where the Estate challenged the constitutionality

of legislative amendments to former RCW 83. 100. 230 that allowed the State to transfer funds out


of the education legacy fund and into the state general fund during the 2007- 2009 and 2009- 2011

bienniums.'        The Estate argued that the legislature' s plenary power to enact the amendments was




 William Wall was the other plaintiff in this case; however, the superior court dismissed him as a
party based       on   lack   of    standing.    Wall does not appeal the superior court' s order dismissing him
for lack    of   standing.
No. 46641 -4 -II



                                                    52                      193.
limited      by   Wash. Const.      art.   VII, §        and art.   II, §          We hold that   art.   VII, § 5   does not apply,

and    the   requisite criteria    to   show   a violation     of art.    II, §    19 has not been shown. Consequently, the

Estate has failed to show a constitutional limitation exists on the legislature' s power to enact the


challenged amendments. Because it is unable to show the legislation authorizing the discretionary

transfer of money to the state general fund was unconstitutional, the Estate cannot establish the

subsequent transfer of money from the education legacy fund to the state general fund was

unconstitutional. Accordingly, we affirm.

                                                                FACTS


             In 2005, the legislature          passed      the " stand- alone"         estate tax, former RCW 83. 100. 040


    2005).     Former RCW 83. 100. 220 directed that estate taxes paid pursuant to former RCW


83. 100. 040 be deposited into the education legacy trust account. Under former RCW 83. 100. 230

    2005):


             The           legacy trust account is created in the state treasury. Money in the
                   education


             account may be spent only after appropriation. Expenditures from the account may
             be used only for deposit into the student achievement fund and for expanding access
             to higher edi4cation through funding for new enrollments and financial aid, and
             other educational improvement efforts.


Other funds are also deposited into the education legacy trust account. However, all of the funds

in the account are comingled, and it is impossible to determine the source of the funds in the


account.




2
    Art. VII, § 5        No tax shall be levied except in pursuance of law; and every law imposing
                     states, "

a tax shall state distinctly the object of the same to which only it shall be applied."
3
    Art. II, § 19   states, "    No bill shall embrace more than one subject, and that shall be expressed in
the title."




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No. 46641 -4 -II



          In an appropriations bill for the 2007- 2009 biennium, the legislature amended former RCW

83. 100. 230 ( 2005) to       add a section     that   stated: "   During the 2007- 2009 fiscal biennium, moneys in

the   account    may   also   be transferred into the           state general   fund." LAWS             OF   2008,   ch.   329, § 924.


On June 9, 2009, $ 67         million was transferred from the education legacy trust account to the state

general   fund.       In an appropriations bill for the 2009- 2011 biennium, the legislature amended


former RCW 83. 100. 230 ( 2008), changing " 2007- 2009 fiscal biennium" to " 2009- 2011 fiscal

               4, 5
biennium."            LAWS    of   2010, 1st Spec. Sess.,          ch.   37, § 953.      In 2012, the legislature amended


former RCW 83. 100. 230 a third time as follows:


          The           legacy trust account is created in the state treasury. Money in the
                 education

          account may be spent only after appropriation. Expenditures from the account may
          be   used   only for ((deposit k4e the          st-
                                                            u    efA
                                                                       aehieve,,
                                                                                   ent   f, n   ))   support of common

          schools, and for expanding access to higher education through funding for new
          enrollments and financial aid, and other educational improvement efforts. (( Diffkig



          the state general fun .))


LAWS     OF   2012, 1 st Spec. Sess.,     ch.   10, § 7.


          On    May    31, 2011, the Estate       paid $    171, 403 in     estate    taxes.         On June 8, 2012, the Estate


filed a complaint for declaratory judgment. The Estate alleged that the transfer of funds from the

education      legacy trust   account    into the      state general     fund   was unconstitutional under art.               VII, § 5.


The Estate requested that the superior court issue an injunction preventing further diversion of

funds out of the education legacy trust account. And, the Estate requested that the superior court



4 The amendments to former RCW 83. 10.230 in 2008 and 2010 were made in bills involving the
state' s operations     budget. LAWS       of    2008,    ch.    329, § 924; LAWS of 2010, 1st Spec. Sess., ch. 37,
  953.


5 From the record before this court, it does not appear that there was any transfer of funds resulting
from the 2010 amendments.



                                                                   3
No. 46641 -4 -II



order the legislature to restore the amount of money transferred out of the education legacy trust

account into the general fund.


          The State   alleged several affirmative      defenses   including: ( 1) the Estate lacked standing, (2)

the Estate' s action    was   time barred,   and (   3) the Estate'   s action was moot.     The State moved for


summary judgment dismissal          of   the Estate'   s claims   based   on   those   affirmative   defenses.   The


Estate filed a cross motion for summary judgment.

          The superior court rejected the State' s affirmative defenses. 6 However, the superior court

granted the State' s motion for summary judgment on the merits of the Estate' s claims, denied the

Estate'   s cross motion   for summary judgment,          and   dismissed the Estate'    s complaint.    The Estate


filed   a motion   for direct   review with our       Supreme Court.       Our Supreme Court transferred the


Estate' s appeal for consideration by this court.

                                                     ANALYSIS


A.        STANDARD OF REVIEW


          We review a superior court' s order on summary judgment in a declaratory judgment action

de   novo.   Internet   Cmty. & Entm' t Corp. v. Wash. State Gambling Comm' n, 169 Wn.2d 687, 691,

238 P. 3d 1163 ( 2010).        Summary judgment is appropriate if no genuine issues of material fact

exist and the moving party is entitled to judgment as a matter of law. CR 56( c).




6 The State argues that this court should not reach the merits of the* Estate' s constitutional
arguments, but rather, affirm the superior court' s order based on the threshold issues of standing,
mootness, separation of powers, or statute of             limitations.    The State has not cross appealed the
superior court' s order denying their motion for summary judgment in part on these issues.
Therefore, we do not address issues raised in the State' s argument.



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No. 46641 -4 -II



B.         LEGALITY OF THE TRANSFER OF FUNDS


            It is a fundamental principle of our system of government that the legislature has plenary

power    to     enact    laws,   except as         limited   by   our state and       federal   constitutions."        Wash. State Farm


Bureau Fed' n           v.    Gregoire, 162 Wn.2d 284, 290, 174 P. 3d 1142 ( 2007).                              The Estate claims art.


VII, § 5    and art.      II, § 19     of the Washington State Constitution precluded the legislature' s 2008 and

2010 amendments to former RCW 83. 100. 230, and therefore, the amendments were invalid.

Because         art.   VII, § 5 does         not   apply   and art.   II, § 19 does not invalidate the amendment, we hold


that the Estate' s constitutional challenge fails.

           1.            Art. VII, § 5        Does Not Apply

           The Estate argues that the amendment to former RCW 83. 100. 230 authorizing the transfer

of   money from the Education                      Legacy       Trust Account to the        general       fund   violates art.   VII, § 5.


However, that provision restricts the legislature' s power to impose a tax, not the legislature' s

                                                                                                                   7
plenary    power         to   spend.    Therefore,         we   hold that    art.   VII, § 5 does   not   apply.


           Art. VII, § 5 of the Washington Constitution states:


           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.

This court interprets constitutional provisions to " give effect to the manifest purpose for which it


was adopted."            Westerman           v.   Cary,    125 Wn.2d 277, 288, 892 P. 2d 1067 ( 1994). This court looks


first to the plain language of the text and gives the plain language its common and ordinary



7
    The State      argues      that   art.   VII, § 5     does, not apply to the legislation the Estate challenges because
art.   VII, § 5        applies   exclusively to property taxes                  and not estate      taxes.   However, as discussed
below,     art.   VII, § 5      does not apply because the Estate is not challenging the imposition of an estate
tax.    Therefore, we do not address whether that provision would apply to the imposition of an
estate tax.




                                                                         5
No. 46641 -4 -II




meaning.        Wash. Water Jet Workers Ass' n v. Yarbrough, 151 Wn.2d 470, 477, 90 P. 3d 42 ( 2004), .

cert.   denied, 543 U. S. 1120 ( 2005). Here, the               plain   language     of art.   VII, § 5   clearly demonstrates

that it applies only to legislation establishing taxes; it does not apply to legislation authorizing

legislative spending.

          Art. VII, § 5     contains      two    restrictions on      the legislature'   s    ability to tax. First, it requires


that any tax be levied          pursuant   to law. Art. VII, § 5.         Second, it requires every law imposing a tax

to " state   distinctly   the   object of    the   same   to   which   only it   shall   be   applied."   Art. VII, § 5.   Here,


the Estate does not challenge a law imposing a tax, it is challenging' a law that transfers tax money.

The     plain   language   of art.      VII, §   5 does not restrict the legislature' s plenary power to transfer

money.       Accordingly,       art.   VII, § 5 is inapplicable.


          The cases the Estate cites to support its argument that the amendments to former RCW

83. 100. 230     violated art.    VII, § 5 do not contradict the plain language interpretation of art. VII, §


5.   In Sheehan     v.   Cent. Puget Sound          Reg' l   TransitAuth., 155 Wn.2d 790, 123 P. 3d 88 ( 2005), the


plaintiffs directly challenged the motor vehicle excise tax. The Sheehan court articulated that the

issue was whether the taxes imposed were unconstitutional, not whether the legislature validly

authorized spending the tax money. Id. at 796. Burbank Irr. Dist. No. 4 v. Douglass, 143 Wash.

385, 396, 255 P. 360 ( 1927),              does to some extent, address the diversion of funds from a money

payable out of a special account.                  However, the       case   does   not address art.      VII, § 5.   Instead, it


addresses whether the county was properly paying warrants pursuant to the requirements of the




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No. 46641 -4 -II



                                              8
irrigation      code.     Id. at 395- 96.          Similarly, State ex rel. State Bd.for Vocational Educ. v. Yelle, 199

Wash. 312, 91 P. 2d 573 ( 1939) addressed appropriations from the common school fund required


by   art.   IX   of   the Washington Constitution.                          Id. at 315- 16.      It does not establish a constitutional


cause of action         challenging legislative transfers                      under art.     VII, § 5. Id.


            The Estate'      s reliance           on   Sheldon         v.    Purdy,       17 Wash. 135, 49 P. 228 ( 1897), is also


misplaced. Sheldon was an action in which the plaintiff asked the court for a writ of mandamus


ordering the county treasurer to pay coupons due upon bonds issued by the school district. Id. The

money that the plaintiffs alleged the school district had used to pay the coupons was money from

the "   common -school          fund"        created    by      art.   IX     of    the   constitution.   Id.   at   138- 39.    The court held


that, to the extent that . the law required the County treasurer to divert money from the

constitutionally          created " common -school                fund," the law would be unconstitutional. Id. at 141- 42.


However, Sheldon does              not create a cause of action under art.                          VII, § 5 for a taxpayer to challenge


the use of money authorized by the legislature in a statutorily created fund.

            The Estate has not cited any case since Sheldon was decided in 1897 for the proposition

that    art.   VII, § 5   restricts the legislature' s plenary authority to spend or supports a cause of action

challenging the legislature'             s   transfer of funds between                      accounts. "   Where no authorities are cited


in support of a proposition, the court is not required to search out authorities, but may assume that

counsel, after        diligent   search,          has found       none."            DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d


122, 126, 372 P. 2d 193 ( 1962). Thus,                       regardless of whether art.               VII, § 5 applies to estate taxes or




8
    The "   real question"      in the   case was         framed            as: "   shall warrants for operating expenses be paid in
the order of their registration, regardless of the year in which they were issued, or shall such
warrants when           issued   constitute a           first    claim on           the   expense   fund for that       year?"     Burbank Irr.
Dist. No. 4, 143 Wash. at 390.'



                                                                                7
No. 46641 -4 -II




whether it applies exclusively to property taxes, the Estate is not challenging the imposition of an

estate      tax,   and   it has   not provided      any authority supporting the             contention   that   art.   VII, § 5 applies


to amendments authorizing the transfer of funds between accounts.

             2.    Constitutionality      Under Art. II, § 19


             The Estate also alleges that the amendments to former RCW 83. 100. 230 violate art. II, §


19 of the Washington Constitution. We disagree.

             Art. II, §       19 states that " No bill shall embrace more than one subject, and that shall be

expressed          in the title." Two      specific rules are embodied           in   art.   II, § 19: ( 1) the subject in title rule


and ( 2) the single subject rule.


                         a.        Subject in Title Rule


             Under the         subject   in title     requirement of art.    II, § 19, the subject of the bill must be


adequately          expressed      in its title. Wash. State Grange v. Locke, 153 Wn.2d 475, 497, 105 P. 3d 9


 2005). The purpose of this requirement is to guarantee notice of the subject matter of the bill. Id.


at   491. "       To be constitutionally adequate, a title need not be ` an index to the contents [ of the bill],

nor must          it provide details     of the measure. "'    Id. at 497 (quoting Amalgamated Transit Union Local

587    v.   State, 142 Wn.2d 183, 217, 11 P. 3d 762, 27 P. 3d 608 ( 2000)).                        The title of the bill need only

provide sufficient notice             to inform       voters and   legislators   of   the    subject matter of     the bill. Id. " The



title satisfies the subject in title requirement ` if it gives notice that would lead to an inquiry into

the   body of the        act, or   indicate to   an   inquiring mind the scope         and purpose of the        law.""     Id. (quoting

Young Men' s Christian Assn v. State, 62 Wn.2d 504, 506, 383 P. 2d 497 ( 1963)).




                                                                     8
No. 46641 -4 -II



          While the Estate challenges the amendments to former RCW 83. 100. 230 as violating art.

II, §   19, the Estate fails to meaningfully distinguish between its allegation that the bills in question

violated the subject in title rule and its allegation that the bills violated the single subject rule.


However, to the extent that the Estate attempts to argue that the bills violate the subject in title


rule, the Estate is mistaken.


          Here;      the    title       of       the    bills    read, "       OPERATING          BUDGET— SUPPLEMENTAL


APPROPRIATIONS AN ACT                              Relating      to    fiscal   matters;   amending RCW ..      83. 100. 230"   and




SUPPLEMENTAL OPERATING BUDGET AN ACT Relating to fiscal matters; amending RCW

    83. 100. 230." LAWS of 2008, ch. 329 pmbl.; LAWS of 2010, 1st Spec. Sess., ch. 37. Thus, the


title of the bills specifically reference amending former RCW 83. 100. 230. The specific reference

to former RCW 83. 100. 230 in both bills provides notice to an inquiring mind that some change

related to the funds in the education legacy trust account is being made in the bills. Therefore, the

subject    in title bill   requirement            in   art.   II, § 19 is met.


                     b.              Single Subject Rule


          Art. II, § 19     serves the purpose of preventing " the practice of combining two bills, neither

of which would pass on its own, but when the proponents of the measures combine their interests


both    can   be   enacted,"         and preventing " the attachment of an unpopular bill to a popular one on an

unrelated subject          in   order       to   guarantee       the    passage    of   the   unpopular provision."   Wash. State


Grange, 153 Wn. 2d              at   491.    The Estate' s primary complaint is that, by inserting an amendment to

former RCW 83. 100. 230 in appropriations bills, the legislature made a substantive change in the




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No. 46641 -4 -II



law through   an administrative appropriations              bill.. This argument goes toward whether the bills


violate the single subject rule, not whether the bills violate the subject in title rule.

         Although the Estate provides examples of circumstances in which the courts have declared


bills amending substantive law in an appropriations bill as unconstitutional, the Estate fails to apply

our Supreme Court' s criteria to determine whether a section of a bill is amending substantive law.

Applying such criteria demonstrates that the amendment to former RCW 83. 100. 230 is not a

substantive change in the law.


         Our Supreme Court has provided three non-exclusive factors to consider when determining

whether a section of a bill is truly substantive in nature:

         We decline to      adopt a categorical          definition   of " substantive    law," but where the

         policy set forth in the budget has been treated in a separate substantive bill, its
         duration extends beyond the two-year time period of the budget, or the policy
         defines rights or eligibility for services, such factors may certainly indicate
         substantive law is present.


Wash. State Legislature         v.   State, 139 Wn.2d 129, 147, 985 P. 2d 353 ( 1999).             Here, not a single


criteria articulated by our Supreme Court applies to the amendments to former RCW 83. 100.230.

         First, former RCW 83. 100.230 was originally the product of the Revenue and Taxation

bill. LAWS   of   2005,   ch.   514, § 1101. Since its creation in 2005, former RCW 83. 100. 230 has been


amended    four times: LAWS of 2008,          ch.      329, § 924; LAWS of 2010, 1st Spec. Sess.,      ch.   37, § 953;


LAWS of 2012,      ch.   10, § 7;    and   LAWS   of   2015, 3rd Spec. Sess.,     ch.   4, § 977. All the amendments


to   former RCW 83. 100. 230 have           come    in   budgeting    or   funding bills.   Former RCW 83. 100. 230


has never been treated in a separate substantive bill. Second, both the 2008 and 2010 amendments


to former RCW 83. 100. 230 were limited to the biennium for which the operating budget was being

created.   Therefore, the amendments did not last past the two year time period of the budget




                                                              10
No. 46641 -4 -II



biennium.       Third, the amendments to former RCW 83. 100. 230 do not define any rights or

eligibility for services, and former RCW 83. 100.230 has never defined any rights or eligibility for

services.



         The Estate    relies on   Flanders    v.   Morris, 88 Wn.2d 183, 558 P. 2d 769 ( 1977), to support its


challenge. Like the legislation in Washington State Legislature, the provision at issue in Flanders

involved    age requirements       for   public assistance.        Id.   at   186.    In Flanders, the court specifically

noted that there had been two prior attempts to introduce age requirements for public assistance;

however,    when presented      in   separate substantive          bills, the bills failed to         pass      both times. Id. at


187. The Flanders court recognized that the legislature had used an appropriations bill to pass a


law that   could not pass on   its   own merits, which was          exactly     what art.     II, § 19 was meant to prevent.


fr%
  A


         Here, there is nothing before this court that indicates the amendments to former RCW

83. 100.230 had been introduced in separate bills prior to the legislature passing the amended bill. .

Accordingly, outside the Estate' s bald assertions, there is no evidence establishing that the

legislature abused an appropriations bill in the same manner as the court disapproved of in

  landers.-
Flanders.-


         Finally, the Estate relies on Washington Toll Bridge Authority v. Yelle, 54 Wn.2d 545, 342

P. 2d 588 ( 1959).     In Washington Toll Bridge Authority, the court held that a provision regarding

the   funding   of   bonds included in      an appropriations        bill     violated art.    II, § 19.        54. Wn.2d at 550.


The   court   determined that the        provisions violated art.             II, § 19 because the provision was of a


 general and     continuing   nature," rather       than   being temporary           in   nature.   Id.   at   551. Moreover, the


provision restricted the power of the Toll Bridge Authority, while at the same time vesting new



                                                              11
No. 46641 -4 -II




powers in the State Highway Commission. Id. at 551- 53. Here, the amendments to former RCW

83. 100. 230      are not " general and     continuing."   Id.   at   551.   They are limited to the specific fiscal

biennium for which the appropriations were passed. And, the amendments do not restrict current


powers in an agency, nor do they create or vest new powers.

          In sum, the Estate fails to show; based on the Supreme Court' s explicit criteria, that the

amendments to former RCW 83. 100. 230 constitute a substantive change in the law. And, the cases


to which the Estate cites do not provide any support for the contention that the 2008 and 2010

amendments         to former RCW 83. 100. 230         should   be   considered substantive.    Instead, the cases on


which the Estate relies apply the same criteria for determining whether a provision is a substantive

change     in the law   as were set out      in   Washington State Legislature, 139 Wn.2d 129. Because the


amendments to former RCW 83. 100. 230 do not meet any of the criteria, there is no basis for

concluding that they were substantive changes to the law improperly inserted into the amendments.

                                                     CONCLUSION


           We hold that    art.   VII, §   5 does not apply, and the requisite criteria to show a violation of

art:   II, § 19   has not been shown. Consequently, the Estate fails to show a constitutional limitation

exists on the legislature' s power to enact the challenged amendments. Because it is unable to show


the legislation authorizing the transfer of funds to the state general fund was unconstitutional, the

Estate cannot claim the subsequent transfer of money to the state general fund was

unconstitutional.




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No. 46641 -4 -II



        We affirm.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06.040,

it is so ordered.




                                                                        Lee, J.
 We concur:




                     1 axa, P.J.




                     M i,
                       -
                            T
                        Giick, J




                                                13
