The phrase,'Unsound Transit', was coined by the Wall Street Journal to describe Seattle where,"Light Rail Madness eats billions that could otherwise be devoted to truly efficient transportation technologies." The Puget Sound's traffic congestion is a growing cancer on the region's prosperity. This website, captures news and expert opinion about ways to address the crisis. This is not a blog, but a knowledge base, which collects the best articles and presents them in a searchable format. My goal is to arm residents with knowledge so they can champion fact-based, rather than emotional, solutions.


Tuesday, March 25, 2008

Ruling in Sane Transit v Sound Transit re revisions to ST plans

SANE TRANSIT, a Washington non-profit corporation; and MARK BAERWALDT, for themselves and on behalf of the taxpayers,
SOUND TRANSIT, a regional transit authority,
Defendant. No. 02-2-15207-4 SEA

On November 5, 1996, voters passed Proposition No. 1, a measure authorizing Sound Transit (“Sound”) to build a high-capacity regional transportation system, including. The plan included a proposal for electric light rail, commuter rail, express buses, HOV lanes and other transportation improvements. Since that time, the Sound Transit Board has determined that eEconomic and other circumstanceshave since arisen that may cause Sound Transit to modify aspects of the original plan, including a significant shortening of the proposed 21-mile electric light rail system. Washington law prohibits the expenditure of tax funds on projects other than as authorized by the spending of voter-approved taxes that is not within the authority granted by the approved
voter-approved measureballot measure. In this lawsuit, Sane Transit (“Sane”) claims that Sound is proceeding with a project that substantially deviates from the voter-approved measure. Sound responds that the voters granted it the authority to make adjustments in the event of budget shortfalls. Sane requests that Sound be enjoined from further implementing the electric light rail system.
1. Creation of the Ten-Year Regional Transit Plan.
Sound Transit is a regional transit authority governed by an appointed board of elected officials, serving Snohomish, King, and Pierce Counties. Sound is in the process of building a regional transportation system in these counties. In 1995, voters rejected an earlier proposed regional transit plan. On May 31, 1996, Sound Transit adopted a document as the official Sound Move Ten-Year Regional Transit System Plan ("Regional Transit Plan"), which serves as a blueprint for the overall transit plan. Pursuant to state law, Sound Transit also prepared an abbreviated form of this document under the same name and distributed it to registered voters as an eight-page brochure.
In August 1996, the Sound Transit Board adopted Resolution No. 75 which approved placing Proposition No. 1 on the ballot in November of that year. Resolution No. 75 proposed to impose taxes in order to plan, build, and operate a regional transportation system. As described more fully below, Resolution No. 75 identifies (1) the .04% sales tax and the .03% motor-vehicle excise tax to be imposed, (2) explains the Board's authority to manage the projects and spend the taxes, and (3) describes the 70 projects making up the system. It also delegates broad authority to the Board to prioritize projects which “are deemed by the Board to be most necessary and in the best interests of the RTA” in the event of a budget shortfall.
Prior to the election, Sound Transit forwarded Resolution No. 75 to election officials.
2. The Ballot Measure Was Adopted by the Voters in 1996.
Pursuant to state statute, the prosecuting attorney prepared the ballot title for Proposition No. 1, which along with the explanatory statement, was forwarded to election officials to be placed on the ballots in the respective jurisdictions. The ballot title read:
To implement a regional rail and express bus system linking Tacoma, Seattle, Bellevue, Everett, other cities and SeaTac Airport, shall the Regional Transit Authority impose a sales and use tax of up to four-tenths of one percent and a motor vehicle excise tax of three-tenths of one percent to provide the local share of funding towards the $3.9 billion estimated cost of the system, as provided in Resolution 75 and the “Ten-Year Regional Transit System Plan?”
Although the proposition referred to both Resolution No. 75 and the “Ten-Year Regional Transit System Plan,” neither was published in the Local Voters’ Pamphlet. The voters approved Proposition No.1 by a margin of 56.6% to 43.4%.
3. Cost overruns and delays have resulted in system changes and proposed modifications.
Sound Transit has implemented planning and construction of the overall regional transit plan. These include express-bus service, park-and-ride lots and transit centers. In addition, the Tacoma lightrail line is under construction, scheduled to begin passenger service in 2003. Light rail aside, the regional system has been modified numerous times since 1996. Projects have been added, deleted, or modified to reflect changed conditions. The light rail line, which Plaintiffs seek to enjoin, is one of the 70 projects included in the transportation plan presented to the voters.
Sound Transit originally estimated that the system could be completed within 10 years at a total estimated cost of $3.9 billion. However, Sound acknowledges the light rail line, the commuter rail line, and several of the bus/highway projects will cost more than anticipated. The focus of Sane Transit’s action, however, is the proposed modification to the 21-mile electric light rail system through Seattle.
Following planning, environmental review and design work for the light rail line, the Board had initially selected a light rail route that largely conformed to the route described in the Regional Transit Plan. However, according to Sound, budget problems arose in late 2000 when additional design work revealed that the cost estimate should be increased by approximately $668 million for the route between the University District and SeaTac Airport. In response to the cost increase, the Board re-evaluated the light rail line.
Sane has not disputed in these cross-motions the history of the re-evaluation process or the changed circumstances which underlie the Board’s decisions.
During 2001, the Board concluded that several unforeseen circumstances caused project costs to increase: (1) higher tunneling and station construction costs due to poor soil conditions; (2) higher real-estate costs associated with a booming economy; (3) different alignment and location for the airport station due to airport-expansion plans; (4) higher construction costs due to an accelerated construction schedule; and (5) higher project-management costs. The Board extended the anticipated construction schedule until 2009 to allow time for engineering studies to identify less expensive routes to the University District.
The Board analyzed options designed to reduce light rail costs while maintaining the transportation benefits. The Board concluded (1) that there was not sufficient money or time to build the entire 21-mile line as it was designed, and (2) that the 14-mile segment from downtown Seattle to South 154th with shuttle service for the 1.6 mile ride to SeaTac Airport should be constructed. Sound currently estimates the 14-mile segment will cost $1.497 billion with a 2009 completion date. Daily ridership for this segment is estimated to be 42,500.
Sound Transit has indicated its desire to be able to extend the 14-mile line to complete substantial portions of the remaining seven miles with extended anticipated funding. Sound Transit acknowledges, however, that it cannot state with certainty which portions of the remaining seven miles of the line will be built because it does not yet know either the cost to construct the other segments or the amount of funding that will be available. Numerous unknown factors will affect the affordability of these extensions, including the route and station locations, the construction schedule, the Port of Seattle’s financial contribution, the available project reserve, and the level of federal grant funding.
This case is before the Court on cross-motions for summary judgment. Plaintiff Sane Transit is asking this Court to conclude that Sound Transit would be proceeding beyond its authority granted in the voter-approved proposition. Sane requests that the Court issue an injunction against Sound to stop further construction of the electric light rail component of the regional transit system.. Sound responds that this Court declare that the language in the ballot measure authorizes it to make the challenges modifications. Neither party argues that there are any material facts in dispute for this determination. Therefore, these issues shall be decided as a matter of law.
This Court determines the scope of that authority based on the language in the ballot measure approved by the voters. Proposition No. 1 specifically incorporated both Resolution No. 75 and the Ten-Year Regional Transit Plan. For the reasons explained in detail below, this Court concludes that Sound Transit’s proposed modifications of the electric light rail system do not substantially deviate from the broad authority delegated by the voters to Sound Transit in the ballot measure, Proposition No. 1.
1. Washington law provides that Sound may spend taxes as authorized by the voters but may not substantially deviate from that authority.
Sane Transit and Sound Transit agree that Washington courts follow the "substantial deviation" rule in evaluating whether modification of voter-approved projects is permissible. Washington courts have limited the power to spend voter-approved taxes to the authority granted by the language in ballot measure. Thompson v. Pierce County, 113 Wn. 237, 193 P. 706 (1920). A governing body may not spend bond money raised for a designated purpose for a purpose not approved by the voters. See generally King Cy. v. Taxpayers, 104 Wn.2d 1, 6, 700 P.2d 1143 (1985); O'Byrne v. Spokane, 67 Wn.2d 132, 136-37, 406 P.2d 595 (1965); George v. Anacortes, 147 Wash. 242, 265 P. 477 (1928); Hayes v. Seattle, 120 Wash. 372, 374-75, 207 P. 607 (1922). However, local governments are not required to complete a project exactly as approved and may abandon a project in the appropriate circumstances. See Hayes, at 376, 207 P. 607 (within City's discretion not to expend bond money on some of the proposed improvements); George, at 245-46, 265 P. 477. In George, the court stated that, while city officers are not allowed to change approved actions at their will, "[m]any situations might arise after approval that would make it unwise for the city to proceed with a project, and abandonment might be a proper action to take." George, at 245, 265 P. 477. Similarly, once a bond-funded improvement is constructed, the government is not required to continue operating it as originally planned. See Moses Lake Sch. Dist. 161 v. Big Bend Comm'ty College, 81 Wn.2d 551, 556-57, 503 P.2d 86 (1972) (statute constitutional under which local school district transferred community college, built with general obligation bond money, to the State). See also Wheeler v. DeKalb Cy., 249 Ga. 678, 292 S.E.2d 855, 858-59 (1982) (senseless to require buildings' continued use for original purpose when no longer needed for that purpose); Silverman v. Board of Educ., 134 N.J.Super. 253, 339 A.2d 233, 237-38 (Law Div.), aff'd 136 N.J.Super. 435, 346 A.2d 611 (1975).
Sane Transit contends that Sound Transit's proposed modifications will violate the rule against substantially deviating from the authority granted by the voters. First, Sane asserts that publicly- provided documents effectively promised to the voters a regional transit plan that would include a 21-mile electric rail system constructed in a 10-year period. Second, Sane asserts that even if the ballot measure purports to delegate broad authority to Sound to modify the transit plan, such delegation is unlawful. Lastly, Sane argues that Sound may not rely on any purported authority in Resolution No. 75 because the resolution was never published and therefore could not have been relied upon by the average informed voter.
Therefore, the Court must determine which documents constitute the controlling legislation, and whether Sound Transit has substantially deviated from the authority granted by that legislation.
2. The enabling legislation consists of the documents specifically referenced in and incorporated by Proposition No. 1: Resolution No. 75 and Sound Move: the Ten-Tear Regional Transit Plan.
The first question is what constitutes the enabling legislation granting authority to Sound Transit. Sane asserts that the documents that were publicly provided - the 10-year Regional Transit Plan brochure, the ballot title, and the Voters’ Pamphlet explanatory statement - effectively promised to the voters a regional transit plan that would include a 21-mile electric rail system constructed in a 10-year period.
Sound has indicated it may need to shorten the 21-mile electrical rail system as a cost-saving measure and that construction time, even for the shortened line, may extend beyond the 10-year original plan. There can be little dispute that Sound’s projected modifications substantially deviate from the system initially contemplated by Sound Transit. However, this is not the legal issue. Rather, the question is whether the decision to modify the plan substantially deviates from the authority granted by the voters. To determine this, the Court must construe the enabling legislation passed by the voters and analyze the discretion, if any, granted by that enactment. The extent and limits of that authority granted to the governing agency are controlled by the body or text of the measure.
Rules of statutory construction apply to initiatives, as well as to propositions and other ballot measures. Seeber v. Wash. State Pub. Disclosure Comm'n, 96 Wn.2d 135, 139, 634 P.2d 303 (1981); Gibson v. Dep't of Licensing, 54 Wash.App. 188, 192, 773 P.2d 110 (1989). Thus, in determining the meaning of a statute enacted through the initiative process, the court must ascertain the collective intent of the voters who, acting in their legislative capacity, enacted the measure. Wash. State Dep't of Revenue v. Hoppe, 82 Wn.2d 549, 552, 512 P.2d 1094 (1973). Where the voters' intent is clearly expressed in the statute, the court is not required to look further. Senate Republican Campaign Comm. v. Pub. Disclosure Comm'n, 133 Wn.2d 229, 242, 943 P.2d 1358 (1997); City of Tacoma v. State, 117 Wn.2d 348, 356, 816 P.2d 7 (1991); see Biggs v. Vail, 119 Wn.2d 129, 134, 830 P.2d 350 (1992) (if statutory meaning is clear from plain and unambiguous language, that meaning must be accepted by the court). In determining intent from the language of the statute, the court focuses on the language as the average informed voter voting on the initiative would read it. State v. Brown, 139 Wn.2d 20, 28, 983 P.2d 608 (1999); Senate Republican Campaign Comm., 133 Wn.2d at 243, 943 P.2d 1358. Where the language of an initiative enactment is plain, unambiguous, and well understood according to its natural and ordinary sense and meaning, the enactment is not subject to judicial interpretation. State v. Thorne, 129 Wn.2d 736, 762-63, 921 P.2d 514 (1996). However, if there is ambiguity in the enactment, the court may examine the statements in the voters’ pamphlet in order to determine the voters' intent. Thorne, 129 Wn.2d at 763, 921 P.2d 514; see Lynch v. Dep't of Labor & Indus., 19 Wn.2d 802, 812-13, 145 P.2d 265 (1944); see Biggs, 119 Wn.2d at 134, 830 P.2d 350 (if there is ambiguity, extrinsic aids, such as legislative history, may be used to determine legislative intent). Amalgamated Transit Union, Local 587, et al., v. State, 142 Wn. 2d 183, 205, 11 P.3d 762 (2000); Bayha v. PUD, 2 Wn.2d 85, 97 P.2d 614 (1939) (material in the official voters’ pamphlet may be considered by the court in determining the purpose and intent of these acts.)
The ballot title is not the enabling legislation. The title must reasonably and accurately reflect the scope and purpose of the law. Amalgamated Transit, supra at 205. However, it “need not be an index to the contents of the legislation that follows, not need it express in detail every phase of the subject which is dealt with by the Enactment.” Washington Federation of State Employees v. State, 127 Wn.2d at 555, 901 P.2d 1028; Treffry v. Taylor, 67 Wn.2d 487, 491, 408 P.2d 269; Gruen v. State Tax Commission, 35 Wn.2d 1, 22, 211 P.2d 651; Cory v. Nethery, 19 Wn.2d 326, 330, 142 P.2d 488 (1943); Petroleum Lease Props., Inc. v. Huse, 195 Wash. 254, 260, 80 P.2d 774 (1938); State ex rel. Zent v. Nichols, 50 Wash. 508, 97 P. 728 (1908); State ex rel. Cole v. City of New Whatcom, 3 Wash. 7, 27 P. 1020 (1891).
Similarly, the explanatory statement in the voters’ pamphlet is not enabling legislation. It may be employed as an aide in statutory construction in the face of an ambiguity. However, in the absence of an ambiguity, the language of the enactment controls. State v. Thorne, 129 Wn.2d at 752-63.
Sane Transit urges this Court to determine the scope of Sound Transit’s authority by considering the “publicly distributed” documents only: the ballot title and statements made in the voters’ pamphlet and the eight-page Regional Transit Plan brochure published and distributed pursuant to RCW 81.104.100. Conversely, Sound Transit argues that only Resolution No. 75 (and other resolutions incorporated by reference) dictate the scope of authority granted to Sound.
For purposes of ascertaining the voters’ intent, this Court considers the language of Proposition No.1, the ballot measure submitted to the voters. In that proposition, the voters were presented with a regional transportation plan “as provided in Resolution No. 75 and the ‘Ten-Year Regional Transit Plan’”. The plain language of the ballot measure states that the regional transit plan is set forth in both Resolution No. 75 and the eight-page brochure. “Focusing on this language, as the average informed voter voting on the [Initiative] would read it,” this Court concludes that average informed voter would know that the scope of Sound’s authority is governed by those documents.
The “Ten-Year Regional Transit Plan” referenced in Proposition No. 1 is a statutorily mandated document required by RCW 81.104.140, which provides:
... (8) Agencies shall provide to the registered voters in the area a document describing the systems plan and the financing plan set forth in RCW 81.104.100
It shall also describe the relationship of the system to regional issues such as development density at station locations and activity centers, and the interrelationship of the system to adopted land use and transportation demand management goals within the region. This document shall be provided to the voters at least twenty days prior to the date of the election.
In this case, the statutorily mandated document was published as an eight-page brochure entitled “Sound Move: the Ten-Year Regional Transit Plan” and was distributed by mail to registered voters. Sound Transit argues that this brochure can not be treated and was not intended as a legislative enactment because it “was not adopted by the Board as the ballot measure and does not purport to provide detailed direction to the Board about how to manage the taxes or deal with unforeseen or changed circumstances.” Sound Transit Reply, at 12. Granted, the Regional Transit Plan brochure, as a stand-alone document, does not contain the necessary delegation of authority to the Board to implement the plan and to impose and collect taxes to construct the transit system. Even so, the ballot title was required by statute to refer to the eight-page brochure in the ballot title, which Sound Transit did by referring to the “Ten-Year Regional Transit System Plan,” the name it had given the brochure. RCW 81.104.140(7) (“The ballot title shall reference the document identified in subsection (8) of this section”). Given this statutory mandate to produce and publish the Regional Transit Plan document and its specific reference in Proposition No. 1, this Court cannot reasonably ignore the language of the document in ascertaining the voter intent.
Sound Transit urges that the Regional Transit Plan brochure should be considered only in the event of an ambiguity in Resolution No. 75. This Court disagrees. The Legislature expressly directed that specific information be disclosed to the voters in a brochure to be distributed not more than twenty days prior to the election. Given the mandated distribution of this information to the voters, this Court can not discount that the average informed voter may have or could have considered it in approving the ballot measure.
This same analysis is applicable to Resolution No. 75. That resolution was passed by the Board as the official enactment of the regional transit plan. It provides the comprehensive details for implementation, construction and financing for the regional transit plan – essential items not included in the eight-page brochure. Moreover, the resolution expressly authorized the Board to place Proposition No. 1 on the ballot for approval by the voters. Resolution No. 75 was forwarded by Sound to local election officials and was specifically referenced in and incorporated by Proposition No. 1.
For these reasons, this Court concludes that both documents – Resolution No. 75 and the Regional Transit Plan brochure – must be read together for purposes of determining the scope of authority of Sound Transit.
3. Resolution No. 75 grants authority to Sound Transit to modify the Regional Transit Plan.
Sound Transit relies principally on a provision in Resolution No. 75 that addresses the scenario in which a budget shortfall may occur. Section 2 of Resolution No. 75 provides:
In the event that the proceeds of federal contributions, plus any other moneys of the RTA legally available, are insufficient to accomplish all of the capital improvements provided by this Resolution, the RTA shall use the available funds for paying the cost of those improvements that are contained in the Ten-Year Regional Transit System Plan and are deemed by the Board to be most necessary and in the best interests of the RTA after consideration of the financial policies approved by Resolution No. 72.
In the event that the Ten-Year Regional Transit System Plan improvements, or some portion thereof, are impractical to accomplish due to changed conditions or force majeure events, the RTA may use the available funds to pay principal of or interest on bonds, to reduce tax levies, or to pay for other capital and/or service improvements that achieve the stated goals of said plan, as the Board in its discretion shall determine as appropriate or necessary in accordance with law and Board policy. (emphasis added.)
Plaintiff Sane Transit argues that “neither the voters’ pamphlet nor the eight-page flyer that Sound Transit mailed to voters in advance of the election informed the voters that Sound Transit claimed the authority to use voter-approved funds to build only a portion of the project if the funds were insufficient to build all of it.” Plaintiff’s Summary Judgment Motion, at 20. “To the contrary,” Sane contends that “Sound Transit gave the voters assurances that its plan was very conservative and could be fully completed on time and without cost overruns.” Id. Sane Transit presents the issue to the Court as a dilemma: a choice between the “assurances” made in the Regional Transit Plan brochure and the technical details provided in Resolution No. 75. Sane asserts that these differences create an ambiguity, and implies that a conflict exists between the documents. The Court finds no such conflict.
The eight-page Regional Transit Plan brochure presents an overall Regional Transit Plan that includes the information required under the statute. It does not purport to be – nor could it be – the detailed legislation necessary to implement a multi-billion dollar regional transit project. Resolution No. 75, and the incorporated resolutions in that document, provides the details for implementing, executing, and financing the transportation plan. By fulfulling these fundamentally different purposes, these documents do not conflict with but rather complement one another. Tunstall ex rel. v. Bergeson, 141 Wn.2d 201, 5 P.3d 691 (2000). See In re Estate of Little, 106 Wn.2d 269, 283, 721 P.2d 950 (1986)(statutes to be harmonized with one another: terms of specific statute control over those of general one).
The eight-page brochure is silent on the issue of what would occur in the event of a budget shortfall for completion of the proposed plan. Contrary to Sane’s assertions, the Regional Transit Plan brochure does not make guarantees or assurances that the project will come in “on time, on budget.” Rather, the brochure employs language such as “is proposing,” “proposes”, “would serve”, and “is committed.” Sane Transit does not assert that Sound Transit should or could be compelled to complete the electric light rail project as proposed in the Regional Transit Plan. Indeed, neither party suggests there is legal authority for compelling such action. However, the Regional Transit Plan brochure does not address what should or could occur in the event that there is insufficient funding for this project. Section 2 of Resolution No. 75 specifically does address that issue. That section provides Sound Transit with precisely the authority, discretion, and flexibility that it now seeks to exercise in potentially modifying the electric light rail system.
Contrary to Sane Transit’s urgings, neither Resolution No. 75 nor the eight-page brochure mandates that in the face of insufficient funds, Sound Transit must either “abandon the project or ... return to the voters for additional funds or for approval of a more affordable project.” The Court is guided by the language of these documents that specify the authority of Sound Transit in such a circumstance. The decision to shorten the electric light rail system does not deviate from that authority. Likewise, neither document contains guarantees or promises that the transit system will be completed in a ten-year period. The decisions by Sound on how to deal with its inability to complete the system within the initially-contemplated time period do not substantially deviate from the decisional authority provided to it by Resolution No. 75 and the Regional Transit Plan brochure.
4. Resolution No. 75 is not an unauthorized delegation of power to Sound Transit.
Sane Transit contends that even if Resolution No. 75 purports to give to Sound Transit the discretion to modify the original plan, such delegation of authority in a ballot measure is unlawful. Sane relies principally on the case of Hayes v. City of Seattle, 120 Wash.372, 207 Pac. 607 (1922). In Hayes, a taxpayer challenged the City’s decision to alter the route of a street car system as part of a plan that had been approved by an ordinance and for which bonds had been sold. The ordinance contained the following provision:
'The city of Seattle may modify details in the foregoing plan or system where necessary or advisable in the judgment of the city council, and where not substantially changing the purposes specified; the city shall also effect such other construction, reconstruction, repair, moving, removing, changing and connecting as may be incidental to carrying out any or all of the foregoing purposes.'
The Supreme Court stated that the question was whether the change proposed by the City was merely “modifying the details of the foregoing plan or system” and “not substantially changing the purposes specified.” The Court found that the alteration of the route was a “radical change” not contemplated. Significantly, however, the Court reached its conclusion by focusing on the specific language in the ordinance. Moreover, the Supreme Court expressly declined to consider issuing a mandate requiring the City to complete the streetcar system, as originally proposed in the ordinance. Rather, the Court recognized that in the face of a budget shortfall, the City may “prefer to expend the money on some other of the proposed extension or betterments.”
It may be that the city will not have money sufficient out of the sale of the bonds to make all of the contemplated improvements, and on that account it may be that it will prefer to expend the money on some other of the proposed extensions or betterments. Whether an extension shall be made rests largely in the discretion of the city council, and we do not feel that we are justified in commanding the city to construct this extension.
A more recent case, Concerned Citizens of Hospital District No. 304 v. Board of Commissioners, 78 Wn.App 333, 987 P.2d 1267 (1995) followed the rationale of the Hayes Court in concluding that in the appropriate circumstances, local governments are not required to complete a project exactly as initially approved.
In Citizens, the voters approved a ballot measure authorizing bonds to renovate a rural hospital so that the hospital could continue to operate its emergency room. The ballot measure informed voters that while the hospital's governing board "intended to maintain acute and critical care services ... for the foreseeable future," it also noted that the emergency room services might be eliminated in the future. 78 Wn.App. at 338. After the renovations were partially complete, the hospital board decided to close the emergency room due to changed economic and regulatory conditions.
The Citizens' plaintiffs argued that the substantial deviation rule required the hospital to complete the renovations and operate the emergency room. Relying on Hayes v. Seattle and George v. Anacortes, 147 Wash. 242, 244-46, 265 P. 477 (1928), the Court held:
[Although] city officers are not allowed to change approved actions at their will, "[m]any situations might arise after approval that would make it unwise for the city to proceed with a project, and abandonment might be a proper action to take. Similarly, once a bond-funded improvement is constructed, the government is not required to continue operating it as originally planned.
78 Wn.App. at 341. The Court also noted that the resolutions adopted before the voters approved the project informed them of potential project changes and precluded any claims for breach of contract or other equitable claims. Id. at 342.
These cases stand for the proposition that a government agency can not be compelled to complete a project, as originally proposed, in the face of impracticalities or financial impossibility. Although Sane does not seek to force Sound Transit to complete the 21-mile electric rail system, it does contend that it is an all-or-nothing proposition. In other words, Sane argues that either Sound Transit complete the entire 21-mile electric rail system or be enjoined from building any of it. Resolution No. 75 and the Regional Transit Plan mandate otherwise. The enabling legislation expressly gives Sound Transit the discretion to modify the plan in light of budgetary or other constraints. As in the Concerned Citizens case, Sound anticipated that such a modification might be necessary, and is allowed to proceed with the authority granted in Proposition No. 1.
For these reasons, this Court concludes that Resolution No. 75 is not an unauthorized delegation of power to Sound Transit to exercise discretion to modify the Regional Transit Plan.
5. Resolution No. 75 is not invalidated as the ballot measure because election officials did not published it in the local voters’ pamphlet.
Sane argues that Resolution No. 75 should not be considered as enabling legislation for Sound Transit because it was not published in the voters’ pamphlet. It maintains that Sound failed to comply with statutory requirements for publishing the text of the measure, thus depriving the voters of key information about the legislation.
RCW 81.104.140 provides:

(9) For any election in which voter approval is sought for a high capacity transportation system plan and financing plan pursuant to RCW 81.104.040, a local voters’ pamphlet shall be produced as provided in chapter 29.81A RCW.
RCW 29.81A.040 provides:
The local voters' pamphlet shall include but not be limited to the following:
* * *
(3) The text of each measure accompanied by an explanatory statement prepared by the prosecuting attorney for any county measure or by the attorney for the jurisdiction submitting the measure if other than a county measure. . . .
(4) The arguments for and against each measure submitted by committees selected pursuant to RCW 29.81A.080.
(emphasis added).
In construing the meaning of the term “the text of each measure” this Court again construes the statutes. In contrast to the language governing publication in local voters’ pamphlets, the statute addressing state voters’ pamphlets provides:
The voters’ pamphlet must provide the following information for each state-wide issue of the ballot …
(10) the full text of each measure.” RCW 29.81.250 (emphasis added).
This Court also notes that the predecessor statute to RCW 29.81A.040 stated “at the conclusion of the pamphlet, the full text of each of the measures shall appear.” RCW 29.81.010(5) (emphasis added). In construing the current local voters’ pamphlet statute, this Court applies the elementary rule that “where certain language is used in one instance, and different in another, there is a difference in legislative intent.” United Parcel Service v. Dep’t of Revenue, 102 Wn.2d 355, 362, 687 P.2d 186 (1984); Seeber v. Public Disclosure Commission, 96 Wn.2d at 139, 634 P.2d 303 (1981).
It is not clear what the Legislature meant by the word “text” in RCW 29.81.040(3), in contrast to the term “full text” as employed in RCW 29.81.250(10) and former statute RCW 29.81.010(5). Sound Transit suggests that the term “text of each measure” should be interpreted to mean “ballot title”. The prior statute governing state voters’ pamphlets, RCW 29.81.010 expressly provided for including …
(1) … (b) the official ballot title of the measure;

(5) at the conclusion of the pamphlet the full text of each of the measures shall appear.
Thus, the prior statute governing statewide measures explicitly required publishing both the ballot title and the full text of the measure. In contrast, RCW 29.81A.040 requires inclusion of “the text of each measure accompanied by an explanatory statement …”. Curiously, there is no express requirement under the local voters’ pamphlet statute to publish the ballot title, although Washington law has consistently held it is the ballot title which “gives notice” to the people and with which “voters are faced in the voting booth.” A separate statute addressing ballot titles, R.C.W. 29.27.060 provides that
[T]here shall also be printed on the ballot a concise statement posed as a question and not exceeding seventy-five words…to clearly identify the proposition to be voted upon, which statement shall be prepared … by the prosecuting attorney for the county.
Thus, there are three possible interpretations to the meaning of the phrase “the text of each measure.” It could be interpreted to mean the “full text”, although the Legislature has manifested its ability to use that term when it is intended. Likewise, it could mean “ballot title”, although again the Legislature appears capable of using that phrase when that is intended. Lastly, the Legislature may have intended that some text of the measure, other than the full text or the ballot title, be included in the local voters’ pamphlet.
It is difficult to conceive that the Legislature would have intended that local voters’ pamphlets not include a ballot title. Indeed, Washington courts have consistently recognized the critical requirement that ballot titles accurately reflect the scope and purpose of legislation because “not all voters will read the text of the initiative or the explanatory statement.” In re Ballot Title for Initiative 333, 88 Wn.2d 192, 198 (1977). Absent inclusion of the ballot title in the voters’ pamphlet, the voters would be deprived of the precise information the Legislature and our courts have deemed essential to put the average informed voter on notice. In contrast to the critical importance of the ballot title, our Supreme Court has remarked that “we can safely assume that not all voters will read the text of the initiative or the explanatory statement.” In re Ballot Title for Initiative 333, 88 Wn.2d at 198.
In light of the publication of the ballot title in the voters’ pamphlet and on the ballot itself, the question is what is the effect, if any, of the full text of Resolution No. 75 not being published in the voters’ pamphlet? Should it invalidate the enactment of Proposition No. 1?
Significantly, this Court notes that neither side to this litigation, Sound Transit nor Sane Transit, seeks this remedy. Second, even if such a challenge were being brought six years after enactment of this legislation, it would be questionable whether such a challenge would be timely. Lastly, a challenge to passage of this local legislation based upon the alleged omissions of local authorities would require, by necessity, joining those local authorities in this litigation. See Civil Rule 19 (joinder of indispensable parties.)
Nevertheless, although Sane Transit is not seeking to invalidate Proposition No. 1, it is seeking to negate provisions of Resolution No. 75, based on a lack of notice and disclosure to the voters. Sane Transit intimates that Sound Transit intentionally hid this broad delegation of authority by the failure to publish Resolution No. 75 in the voter’ pamphlet. However, the facts belie this conclusion.
In 1996, Sound Transit transmitted the full text of Resolution No. 75 to election officials for the three counties within the Sound Transit taxing district (Pierce, King, and Snohomish). Sound Transit also sent the explanatory statement of the ballot measure to the same election officials. Pursuant to state statute, RCW 29.81A.040 and RCW 29.27.066 (formerly RCW 29.27.055), the language of the ballot title was drafted by the prosecuting attorney and then transmitted to the appropriate elections officials. It is undisputed that Resolution No. 75, as referenced in the ballot title, was sent by Sound Transit and received by the elections officials.
The explanation for local elections officials not publishing Resolution No. 75 in the local voters’ pamphlet is not before the Court. It is not a dispositive issue. What is clear, however, is that Sound Transit was not involved in or responsible for the resolution not being published.
Contrary to Sane Transit’s argument that the lack of publication deprived the voters of critical information, Washington courts have recognized that “such publication (of legislation) is usually, if not almost universally, made by publishing the titles.” State ex rel. Washington Toll Bridge Authority v. Yelle, 32 Wn.2d 13, 23, 200 P.2d 467 (1948). The Yelle Court relied upon the principle set forth in an earlier case that the purpose of publishing the legislative or ballot title is “to fairly apprise the people … to the end that persons or institutions affected by such bills may have an opportunity of being heard thereon … . Such publication is usually, if not almost universally, made by publishing the titles.” Swedish Hospital v. Department of Labor and Industries, 26 Wn.2d 819, 176 P.2d 429, 434 (1947).
This is not a hypertechnical argument, as Sane maintains, used to alter the will of the people. Rather, it is a necessary and well-established method for ensuring that the voters’ will is effectuated. Recently, our Supreme Court in the Amalgamated Transit case noted that the ballot title complies with constitutional requirements “if it gives notice which would lead to an inquiry into the body of the act or indicate the scope and purpose of the law to an inquiring mind. However, the title need not be an index to the contents, nor must it provide details of the measure.” Amalgamated Transit Union, Local 587, et al. v. State, 142 Wn.2d 183, 205, 11 P.3d 762 (2000). It is the ballot title which can be appealed prior to an election, RCW 29.79.060, and which appears on petitions, in the voters’ pamphlet, and on the ballot. Recognizing that many voters simply do not read the text of an enactment or the explanatory statement, our Supreme Court has strictly enforced the requirement that the ballot title accurately reflect the scope and the purpose of the enactment. See In Re Ballot Title for Initiative 333, 88 Wn.2d 192, 198 (1977) (opponents to initiative had interest in ensuring the title reflected an impartial purpose of initiative.) Thus, if the ballot title inaccurately represents the scope and or purpose of a measure, opponents must challenge that title within the time mandated under RCW 26.27.067.
There has been no timely legal challenge to the ballot title brought by Sane Transit or anyone else. The time has long since run for such a challenge. Instead, Sane Transit asserts that there was a failure to disclose the full scope of Resolution No. 75, and specifically, the delegation of authority set forth in Section 2. Although this is not a direct challenge to the ballot title, which would be untimely if brought now, the effect is in reality an indirect challenge to that title. In other words, the gist of Sane Transit’s argument is that Proposition No. 1 failed to fairly disclose the full scope of Resolution No. 75, including the delegation of authority.
Sane argues, in essence, that the voters were not given “sufficient information.” If this were true, the proper remedy would have been to challenge the ballot title to ensure that it more accurately or fully reflected what Sane Transit contends is the scope and purpose of Resolution No. 75. However, the law requires only that the title “give notice that would lead in inquiry into the body of the act, or indicate to an inquiring mind the scope and purpose of the law.” It need not provide all the details. By specifically referring to and incorporating Resolution No. 75, the ballot title fulfills the purpose of the statute “to fairly apprise the people … to the end (they) may have an opportunity to be heard.” Yelle, 32 Wn.2d at 23.
In this instance, Sound Transit complied with its statutory requirement of transmitting the text of the measure to the local elections officials. The local elections officials, through the local voters’ pamphlet, indicated to the voters the availability of the full text of the measure at the Elections Department. See Appendix A to this opinion.
There has been no challenge to the passage of Proposition No. 1 because of the failure to publish the full text. There has been no challenge to the ballot title on any claim of inaccuracy or insufficiency with respect to the body of the enactment. That leaves this Court with only one role, and that is to interpret the text of the measure. This Court has concluded that the text of the measure unambiguously grants authority to Sound Transit to modify the Ten-Year Regional Transit Plan by using “available funds for paying the cost of those improvements that … are deemed by the Board to be most necessary and in the best interest of the RTA after consideration of the financial policies approved by Resolution No. 72.” That authority is within the grant given to Sound Transit by enactment of Proposition No. 1 approved by the voters on November 5, 1996. Accordingly, this Court concludes that there is no immediate and irreparable harm in allowing Sound Transit to proceed with implementation of the Regional Transit Plan because there has been no showing that Sound Transit has acted outside the scope of its authority.
For the foregoing reasons, Sane Transit’s motion for summary judgment and injunctive relief is hereby DENIED. Sound Transit’s cross-motion for summary judgment is hereby GRANTED.
This is a final judgment pursuant to Civil Rule 56.
Dated this _____day of November, 2002.
John P. Erlick, Judge


Appendix A: Washington State Voters Pamphlet, State General Election, November 5, 1996, Edition 13
Appendix B: Sound Move, The Ten-Year Regional Transit System Plan
Appendix C: Resolution No. 75, adopted August 23, 1996, by the Board of the Regional Transit Authority for the Pierce, King and Snohomish Counties region

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