Pierce County v. State

¶1 — The issue in this case is whether Initiative Measure No. 776 (1-776) impairs bonds issued by the Central Puget Sound Regional Transit Authority (Sound Transit). Sound Transit was created to address traffic congestion in the central Puget Sound region. Pursuant to statute, Sound Transit was authorized to collect a motor vehicle excise tax (MVET) to finance a transportation system. In the years prior to passage of 1-776, Sound Transit issued and sold the bonds in the public debt market in order to obtain capital needed to build the first phase of the system. It pledged the revenue from the MVET as security for its bonds. Section 6 of 1-776 repealed Sound Transit’s authority to collect the MVET.

*22¶2 In Pierce County v. State, 150 Wn.2d 422, 78 P.3d 640 (2003), this court upheld 1-776 against a number of challenges. However, we remanded this case for a determination of whether 1-776 violates article I, section 23 of the Washington Constitution. On remand, the trial court found that 1-776 impairs the contract between the bondholders and Sound Transit, ruling section 6 of the initiative unconstitutional.

¶3 The intervenors (Salish Village Home Owners Association, one of its members, and Permanent Offense, sponsor of the initiative) seek reversal of the trial court ruling, contending, among other arguments, that the bonds are not impaired. The crux of the intervenors’ argument appears to be that the people, through initiative, have the right to repeal taxes pledged as security for capital intensive projects such as highways and bridges when they no longer want to pay such taxes. However, the contract clause of our state constitution guarantees that “[n]o . . . law impairing the obligations of contracts shall ever be passed.” Wash. Const, art. I, § 23.

¶[4 The intervenors ask this court to ignore the contract clause and long-standing case law in order to repeal MVET taxes securing Sound Transit bonds. Unfortunately, the intervenors point to no authority for their contentions, which are contrary to well-settled law and the plain language of our constitution. Indeed, many of these same claims were made and rejected nearly 150 years ago, allowing international bond markets to fund the United States expansion west, eventually into Washington. As noted by Sir Henry Sumner Maine, “I have seen the rule which denies to the several States the power to make any laws impairing the obligation of contracts criticised as if it were a mere politico-economical flourish; but in point of fact there is no more important provision in the whole Constitution. . . . [I]t is this prohibition which has in reality secured full play to the economical forces by which the achievement of cultivating the soil of the North American Continent has been performed.” Sir Henry Sumner Maine, Popular Government 242-43 (Liberty Classics 1976) (1885).

*23f5 The constitutional impairment is clear in this case. Accordingly, we affirm the trial court.

FACTS

¶6 In November 1996, 56.6 percent of voters in King, Pierce, and Snohomish Counties authorized Sound Transit to collect taxes in the three-county Sound Transit district (a subset of the counties) to construct a comprehensive, multi-billion dollar regional transportation system.1 This transit system includes 70 transportation projects, including express bus service, commuter-rail lines, light-rail lines, park-and-ride lots, transit centers, and HOV (high occupancy vehicle) access improvements in King, Pierce, and Snohomish Counties. The purpose of the regional system is “to improve mobility by providing several convenient, reliable and energy-efficient alternatives to driving alone.” Clerk’s Papers (CP) at 2893. The projects are designed to work together and with other local transit services “to offer a region-wide integrated system of routes, schedules, and fares.” Id. A light-rail line is currently in operation in Tacoma, and a Seattle light-rail line linking Seattle with Sea-Tac International Airport, among other destinations, is currently under construction. By 2009, it is anticipated that the first phase of the system will serve approximately 20 million commuters.

f 7 As a result of the 1996 election, Sound Transit was authorized to collect a 0.3 percent MVET and a 0.4 percent sales and use tax (sales tax) to finance construction and *24operation of the transit system.2 The transit system is funded through a combination of local taxes, long-term bond debt, federal grants, and other revenues. Sound Transit currently imposes a 0.3 percent MVET, a 0.4 percent sales tax, and a 0.8 percent rental car tax. The Federal Transit Administration has awarded the agency a $500 million grant for the initial segment of a light-rail project.

¶8 In 1999, pursuant to chapters 81.112 and 81.104 RCW, Sound Transit issued $350 million in bonds (called the “Central Puget Sound Regional Transit Authority Sales Tax and Motor Vehicle Excise Tax Bonds, Series 1999”) (hereinafter Sound Transit Bonds) to finance a portion of the initial construction of the transit system, selling the bonds to private investors through the public bond market.3 In its bond contracts, Sound Transit pledged the revenues from the MVET and sales tax to the payment of the principal and interest on the bonds and promised to the bondholders that it would levy and collect the MVET and the sales tax while the bonds were outstanding:

Section 8. Covenants. The Authority [Sound Transit] hereby makes the following covenants with the Owners of the [Sound Transit] Bonds for as long as any of the same remain Outstanding:

(a) Tax Levy Covenant. So long as any [Sound Transit] Bonds remain Outstanding, the Authority shall levy the special motor vehicle excise tax authorized by RCW 81.104.160 at a rate of not less than three-tenths of one percent and the sales and use tax *25authorized by RCW 81.104.170 at a rate of not less than four-tenths of one percent; provided, that the Authority may levy the sales and use tax at a rate of not less than three-tenths of one percent so long as the Sufficiency Test is met.

CP at 2589 (emphasis added). The last maturity date of the bonds is 2028. The Sound Transit Bonds are payable from and secured solely by the pledge of Sound Transit’s MVET and sales tax.4 The pledge constitutes a prior lien and charge upon the taxes superior to all other charges of any kind or nature.

¶9 In November 2002, nearly four years after the Sound Transit Bonds were issued and sold to investors, 1-776 was passed. The initiative reduced MVET taxes to $30 for most vehicles across the state. Although the initiative passed statewide, it was not approved by a majority of the voters in the three counties that agreed to fund a portion of Sound Transit’s costs in building a transit system in the congested central Puget Sound region.

flO Section 6 of the initiative amended former RCW 81.104.160 (1998), deleting RCW 81.104.160(1), which authorized Sound Transit to levy and collect the MVET. Section 6 also included new statutory language providing that “[a]ny motor vehicle excise tax previously imposed under the provisions of RCW 81.104.160(1) shall be repealed, terminated and expire on the effective date of this act.” CP at 21 (emphasis added).

¶11 The initiative also recognized that section 6, if passed by the voters and applied to residents in the Sound Transit district, may be prohibited by the “contract clause” of the Washington Constitution, article I, section 23. Thus, section 10 provided that:

If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. If the repeal of taxes in section 6 of this act is *26judicially held to impair any contract in existence as of the effective date of this act, the repeal shall apply to any other contract.

CP at 21 (emphasis added).

¶12 Shortly after the initiative was passed in 2002, Pierce County, the city of Tacoma, and Kang County, among others, challenged the initiative on multiple grounds, including whether the initiative embraced more than a single subject in violation of the Washington Constitution, article II, section 19. Sound Transit joined in the challenge. The intervenors joined the State in defending the initiative. This court held that the initiative was valid and held that the initiative did not violate the Washington Constitution, article II, section 19, among other provisions. Pierce County, 150 Wn.2d 422. However, this court did not address whether section 6 of the initiative violated the contract clause of the Washington Constitution by impairing the Sound Transit Bonds. Instead, this court remanded for that determination because the issue was beyond the scope of those proceedings.

¶13 On remand, the trial court found that the initiative unconstitutionally impairs Sound Transit’s ability to fulfill its express contractual obligation to bondholders to collect the MVET pledged to secure the Sound Transit Bonds. Accordingly, the trial court found that the Washington Constitution, article I, section 23, bars repeal of the Sound Transit MVET (applicable only to residents in the Sound Transit district) so long as the Sound Transit Bonds remain outstanding. However, the trial court also found that the initiative’s language limiting the annual MVET on most vehicles to $30 per year prevents the imposition of any additional MVET in any portion of the state except in the Sound Transit district, thus enforcing the remaining operative provisions in the initiative. The intervenors appealed the decision and we accepted direct review. The Bond Market Association, the Association of Washington Cities, and the Washington State Association of Counties all filed amicus briefs. King County and Pierce County also filed *27response briefs on a separate issue, discussed below, regarding refunds of vehicle license fees.

ANALYSIS

Impairment of Contract under the Contract Clause

114 This matter is here on appeal from summary-judgment, which is properly granted if there are no material issues of fact and the moving party is entitled to judgment as a matter of law. An appellate court reviews a grant of summary judgment de novo. Wash. Fed’n of State Employees v. State, 127 Wn.2d 544, 551, 901 P.2d 1028 (1995).

¶15 “A party challenging a statute’s constitutionality bears the heavy burden of establishing its unconstitutionality.” Larson v. Seattle Popular Monorail Auth., 156 Wn.2d 752, 757, 131 P.3d 892 (2006) (citing Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 205, 11 P.3d 762, 27 P.3d 608 (2000); Hemphill v. Tax Comm’n, 65 Wn.2d 889, 891, 400 P.2d 297 (1965)). “This standard is met if argument and research show that there is no reasonable doubt that the statute violates the constitution.” Larson, 156 Wn.2d at 757 (citing Amalgamated Transit, 142 Wn.2d at 205).

¶16 The intervenors contend that the trial court erred in concluding on summary judgment that the initiative unconstitutionally impairs the contract between the bondholders and Sound Transit in violation of article I, section 23 of the Washington Constitution. The Washington Constitution, article I, section 23, mandates that “[n]o . . . law impairing the obligations of contracts shall ever be passed.”5 It is “fundamental” that this prohibition against *28impairing contracts reaches any form of legislative action, including direct action by the people through the initiative process. Ruano v. Spellman, 81 Wn.2d 820, 825, 505 P.2d 447 (1973).

f 17 “The prohibition against any impairment of contracts ‘is not an absolute one and is not to be read with literal exactness.’ ” Tyrpak v. Daniels, 124 Wn.2d 146, 151, 874 P.2d 1374 (1994) (quoting Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 428, 54 S. Ct. 231, 78 L. Ed. 413 (1934)). But when a state interferes with its own contracts, those impairments “ ‘face more stringent examination under the Contract Clause than would laws regulating contractual relationships between private parties’.” Id. at 151-52 (quoting Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 244 n.15, 98 S. Ct. 2716, 57 L. Ed. 2d 727 (1978)); Caritas Servs., Inc. v. Dep’t of Soc. & Health Servs., 123 Wn.2d 391, 402-03, 869 P.2d 28 (1994). Sound Transit is a municipal corporation and, therefore, its contracts qualify as public contracts. Tyrpak, 124 Wn.2d at 152.

¶18 This court uses a three-part test to determine if there has been an impairment of a public contract: (1) does a contractual relationship exist, (2) does the legislation substantially impair the contractual relationship, and (3) if there is substantial impairment, is it reasonable and necessary to serve a legitimate public purpose? Id.; Caritas Servs., 123 Wn.2d at 403; Carlstrom v. State, 103 Wn.2d 391, 694 P.2d 1 (1985). However, even minimal impairment of contractual expectations in public contracts violates the contract clause where there is no real exercise of police power to justify the impairment. Tyrpak, 124 Wn.2d at 156.

f 19 “[T]o exempt a contract from constitutional protection demands significant justification.” Id. States and other government entities have rarely been able to justify impairing contractual obligations entered into in financial markets, such as the public bond market. See, e.g., Caritas Servs., 123 Wn.2d at 405 (in almost every case, the United *29States Supreme Court has held a governmental unit to its contractual obligations when it enters into financial or other markets). As the Supreme Court noted in United States Trust Co. of New York v. New Jersey, 431 U.S. 1, 27, 97 S. Ct. 1505, 52 L. Ed. 2d 92 (1977), the only time in this century the alteration of a municipal bond contract has been sustained was in 1942 when a bankrupt local government was placed in receivership by a state agency and a plan was approved that was adopted with the purpose and effect of protecting creditors (citing Faitoute Iron & Steel Co. v. City of Asbury Park, 316 U.S. 502, 62 S. Ct. 1129, 86 L. Ed. 1629 (1942)).

¶20 Turning to the first prong of the Tyrpak test, it is well settled that municipal bonds are contractual obligations protected by the contract clause. Tyrpak, 124 Wn.2d 146 (the outstanding bonds of the Port of Vancouver, a municipal corporation, constitute a contract between the port and the bondholders, protected by the contract clause); Mun. of Metro. Seattle v. O’Brien, 86 Wn.2d 339, 544 P.2d 729 (1976) (bonds issued by the municipality of Metropolitan Seattle (Metro), a municipal corporation, constitute a contract between Metro and the bondholders, protected by the contract clause); Ruano, 81 Wn.2d 820 (bonds issued by King County, a municipal corporation, constitute a contract between Kang County and the bondholders, protected by the contract clause).6 Here, the Sound Transit Bonds constitute a contract between Sound Transit and the bond*30holders protected by the contract clause of the Washington Constitution.

¶21 Additionally, the contractual obligations in municipal bonds protected by the constitution include the terms in the municipal bonds, the official statement, the authorizing resolutions, and the statutory provisions governing the applicable municipal corporation in existence when the bonds were issued and sold. See, e.g., Tyrpak, 124 Wn.2d at 152 (the contracts formed between the Port of Vancouver and its bondholders are made up of the terms of the bonds, their authorizing resolutions, and the statutes governing port districts and bond issues); O’Brien, 86 Wn.2d at 350 (discussing contractual obligations contained in the official statement and underlying statutory provisions applicable to the municipal corporation); Ruano, 81 Wn.2d at 825-27 (discussing authorizing resolutions and statutory provisions). See also Cont’l Ill. Nat’l Bank & Trust Co. of Chi. v. State, 696 F.2d 692, 695-96 (9th Cir. 1983) (agreement entered into by the Washington Public Power Supply System with bondholders included promises to bond purchasers made in the form of bond resolutions and the state statutes giving them effect). Thus, the contract protected by the constitution includes the terms of the bonds, their authorizing resolutions (No. R98-47, No. R98-48, and No. R99-4), the official statement, and chapters 81.112 and 81.104 RCW, governing Sound Transit.

¶22 Turning to the second prong of the test, a contract is impaired by legislation which alters its terms, imposes new conditions, or lessens its value. Retired Pub. Employees Council of Wash. v. Charles, 148 Wn.2d 602, 625, 62 P.3d 470 (2003). When assessing the impairment of a municipal bond contract, the contract is “substantially impaired” when “the legislation detrimentally affects the financial framework which induced the bondholders originally to purchase the bonds, without providing alternative or additional security.” Tyrpak, 124 Wn.2d at 153-54. In *31accordance with United States Trust Co. and other relevant federal court decisions, this court has repeatedly held that the financial framework of a bond contract is detrimentally affected and bond obligations are impaired when a law put into effect after bonds were issued diminishes a tax source (i.e., repeals a tax or reduces the tax base) that was pledged to support repayment of the bonds. Tyrpak, 124 Wn.2d at 155; O’Brien, 86 Wn.2d at 351-52; Ruano, 81 Wn.2d at 826-27.7

|23 In Tyrpak, 124 Wn.2d at 148-50, this court struck down a law that would have permitted the Port of Camas-Washougal to annex areas of the neighboring Port of Vancouver, allowing the Port of Camas-Washougal rather than the Port of Vancouver to collect property taxes from the newly annexed lands. Six years prior to the legislation, the Port of Vancouver had issued and sold bonds to the public that were secured in part by those property taxes. This court held that the Port of Vancouver’s bond contract with its bondholders was substantially impaired. Id. at 155. The court explained that “[t]he bondholders bought the bonds with the presumption that the Port of Vancouver would continue to exist in the form that was described at the time of the bonds issue” and if a “change were made, their security would be protected.” Id. Thus, as there was no compensation for the lost security, the reduction of the pledged property constituted an unconstitutional impairment of the contract. Id. at 156-57.

¶24 Similarly, this court found an unconstitutional impairment in O’Brien. In O’Brien, Metro issued and sold bonds to the public that were secured by two taxes, an MVET and a sales tax. The bonds were issued to begin a capital acquisition and improvement program for a transit system. The court explained that:

Metro’s bonds were sold on the basis of representations contained in an Official Statement offering the bonds. The bondholders relied on that Official Statement in negotiations *32leading to the sale of the bonds. In the Official Statement, Metro pledged that it would levy the 1 percent motor vehicle excise tax and the 0.3 percent retail sales tax as authorized by the legislature.

O’Brien, 86 Wn.2d at 350 (footnote omitted). Two years after the bonds were issued and sold, the legislature failed to remit MVET to Metro, reducing the bondholders’ security.

¶25 In O’Brien, the State conceded that the constitution would not permit it to withdraw Metro’s taxing authority to levy and collect the MVET or to divert the proceeds from the tax to some other purpose. Id. at 351. Instead, the State argued that its actions in failing to remit the tax proceeds to Metro did not prevent the taxes from continuing to serve as security for the bondholders because the State would remain indebted to Metro for the amounts collected for Metro and Metro continued to have an account receivable subject to future legislative appropriation. This court disagreed: “The answer ... is simple. This is not what was promised to the bondholders.” Id. Accordingly, this court found that the reduction in bondholders’ security impermissibly impaired the contract. “In short, respondent asks the bondholders to accept an account receivable and an assumption that the state will appropriate funds to cover debt service in lieu of a financially sound operating transit system with the ability to complete its comprehensive plan.” Id.

¶26 Again, in Ruano, this court found that a proposed initiative altering the security pledged for repayment of bonds violated the contract clause. In that case, King County issued and sold bonds in the public bond market to build the Kingdome. King County pledged the proceeds of a hotel/motel tax as security for the bonds, in addition to other security. Ruano, 81 Wn.2d at 825. King County was authorized to levy and collect the hotel/motel tax but could use the proceeds of the tax only for “paying all or any part of the cost of acquisition, construction, or operating of stadium facilities or to pay or secure the payment of all or a portion of general obligation bonds issued for such pur*33pose.” Id. at 826. An initiative was proposed after the bonds were sold, proposing to take away King County’s authorization to build the Kingdome. The appellant in that case argued that the bond contract was not impaired because King County could continue to collect the pledged tax. This court disagreed:

Appellant contends, without citing to authority, that the decision to terminate the stadium would in no way affect the levy of the special excise tax. Yet substantial doubt is obviously created as to the continued collection of a tax which can be levied for a single purpose when that purpose cannot be realized.

The situation is analogous to an effort by the legislation to repeal the authority to levy this tax. That such an effort would be futile and in violation of the constitution is the holding of Von Hoffman v. [ City of] Quincy, 71 U.S. (4 Wall.) 535, 554, 18 L. Ed. 403 (1866), wherein the United States Supreme Court said:

It is equally clear that where a State has authorized a municipal corporation to contract and to exercise the power of local taxation to the extent necessary to meet its engagements, the power thus given cannot be withdrawn until the contract is satisfied.

Ruano, 81 Wn.2d at 826-27. Accordingly, the court in Ruano found that repeal of the hotel/motel tax pledged as security to the bondholders, as proposed by the initiative, would constitute an impermissible impairment of the bond contract in violation of the constitution.

¶27 Applying the second prong of the Tyrpak test, we conclude that section 6 of the initiative impaired Sound Transit’s contract with its bondholders. Under the terms of the bonds, Sound Transit pledged the MVET and covenanted to collect the MVET while the bonds were outstanding. Section 6 of the initiative expressly withdrew Sound Transit’s ability to levy and collect the MVET, reducing the bondholders’ security. Moreover, section 6 of the initiative alters the terms of the bonds because Sound Tran*34sit will be unable to fulfill its covenant to levy and collect the MVET while the Sound Transit Bonds are outstanding.

f 28 This impairment is substantial because it detrimentally affects the financial framework which induced the bondholders to purchase the bonds, without providing alternative or additional security.8 As in Tyrpak, O’Brien, and Ruano, the bondholders were induced to purchase the bonds based on the promise that Sound Transit would continue to levy and collect the MVET, among other taxes. Importantly, the initiative offers no alternative or additional security to the bondholders; it simply withdraws Sound Transit’s authorization to levy and collect the MVET. At the time the bonds were issued and sold, Sound Transit had an unconditional grant of power to levy and collect the MVET, subject to limitations on amount and receipt of voter approval, which it obtained. The pledge of the two major taxes, the sales tax and the MVET, was a critical part of the financial framework inducing the bondholders to invest in the bonds. Investors purchasing the Sound Transit Bonds were told that they could rely on two major revenue streams, which are quite different in character, to secure the bonds. The sales tax depends on the amount of taxable sales that occur within Sound Transit’s taxing district each month. Such monthly sales vary based on the strength/ weakness and performance of the local economy and are therefore somewhat volatile. By contrast, the MVET revenue depends on the value of all currently owned vehicles. MVET revenues provide a stable revenue stream because vehicle owners pay the tax regardless of their current rate of spending on new purchases. Significantly, while Sound Transit reserved the right to reduce the sales tax pledged and covenanted to bondholders, the Sound Transit Bonds *35did not reserve the right to reduce the MVET pledged to bondholders in any amount.

¶29 The intervenors contend that 1-776 did not imper-missibly impair the contract because the market for the bonds remained strong following the law’s enactment. In agreement, the dissent asserts that a reduction in the bond’s current market value is “the ultimate evidence a bond contract obligation has been impaired,” given the rationality and efficiency of the marketplace. Dissent at 53, 63.

130 The United States Supreme Court rejected this reasoning nearly 30 years ago in United States Trust Co., 431 U.S. at 18-19. There, the parties presented credible but conflicting evidence on whether the repeal of a bond contract’s security provision negatively impacted the current market price of the affected bonds. As here, supporters of the repeal presented evidence showing that the bonds retained a favorable credit rating and market price. The Court regarded the focus on current market value as inappropriate, stating, “Factors unrelated to repeal may have influenced price. In addition, the market may not have reacted fully, even as yet, to the covenant’s repeal, because of the pending litigation and the possibility that the repeal would be nullified by the courts.” Id. at 19. In the Court’s view, irrespective of the bonds’ current market value, substantial impairment of the bond contract occurred when the legislature repealed an important security provision upon which the bondholders relied in purchasing the bonds without replacing it with a comparable security provision or offering just compensation. Id.

¶31 The record here illustrates the wisdom of United States Trust Co.’s rejection of the current market value standard proposed by the intervenors. In an attempt to disprove that repeal of the MVET prejudiced bondholders, intervenors presented evidence that Sound Transit’s bond credit rating remained steady in the wake of 1-776. Ironically, however, the credit rating was based, in part, on the credit evaluator’s prediction that this court would “affirm! ] the bond contract” in adherence to well-established case *36law and hold that Sound Transit could continue to collect the MVET. CP at 4142. Thus, the stability of Sound Transit’s credit rating reflects the market’s assumption that this court will nullify 1-776 to the extent it prevents Sound Transit from fulfilling its contractual obligations. While the intervenors and the dissent would have us depend on the rationality of the marketplace to decide whether a law reduces the value of a contract, the market apparently has placed its faith in this court to act rationally by protecting the value of the contract in adherence to well-established case law governing contract clause claims.

¶32 The intervenors further assert that the bond contract was not impermissibly impaired because Sound Transit has other revenue to pay the principal and interest on the Sound Transit Bonds. The intervenors point out that tax revenue from the sales tax, which accounts for approximately 79 percent of Sound Transit’s tax revenue, could be used to pay the bondholders. Tax revenue from the MVET accounts for approximately 21 percent of Sound Transit’s tax revenue. Moreover, the intervenors claim that prior tax revenue collected was more than sufficient to pay off the bonds, thus “fully” securing the bonds, even though Sound Transit used such revenue to build and operate the transit system as authorized by statute and by the bond contract. Thus, the intervenors claim there is no impairment due to prior and future revenue.

¶33 This argument has no merit and has been soundly rejected by this court. In O’Brien, for example, the court acknowledged that the revenues from two tax sources substantially exceeded the requirements for debt service on the bonds. However, the court observed that this excess coverage was an important reason for a favorable rating received from municipal bond rating services. O’Brien, 86 Wn.2d. at 350. The excess coverage was also an important factor in the decision of the bondholders to purchase the bonds. Id. Thus, the court reasoned, “The bonds could not have been sold at the same price and interest rate if the coverage had been significantly less than represented.” Id.; *37see also Ruano, 81 Wn.2d at 827 (rejecting appellant’s argument that bonds were not impaired because the entire tax base of King County secures the general obligation bonds because “it is not the contract entered into with the bond buyers”).9

¶34 The third prong of the test is whether the challenged legislation is “ ‘nevertheless justified as a reasonable and necessary exercise of the State’s sovereign power.’ ” Tyrpak, 124 Wn.2d at 156 (quoting Cont’l Ill., 696 F.2d at 697). This third prong of the impairment test strikes a balance between the inherent police power of the state and the legitimate expectations of those who enter into contracts. Id. (citing U.S. Trust Co., 431 U.S. at 23-24). As this court explained, “ ‘a revenue bond might be secured by the State’s promise to continue operating the facility in question; yet such a promise surely could not validly be construed to bind the State never to close the facility for health or safety reasons.’” Id. (quoting U.S. Trust Co., 431 U.S. at 25.) Nevertheless, to exempt a contract from constitutional protection demands significant justification. Id. Hence, “ ‘even minimal impairment of contractual expectations violates the contract clause where there is no real exercise of police power to justify the impairment.’ ” Id. (quoting Birkenwald Distrib. Co. v. Heublein, Inc., 55 Wn. App. 1, 9, 776 P.2d 721 (1989)).

¶35 In this case, the intervenors claim that a “change in tax policy” justifies reducing the bondholders’ security. However, this justification has been soundly rejected for *38over a century. See, e.g., Tyrpak, 124 Wn.2d 146 (no justification for impairment when purpose of law is to reduce taxing power of one entity to benefit another); O’Brien, 86 Wn.2d at 350-52 (constitution prevents legislature from withdrawing taxing power or diverting the proceeds to some other use when tax pledged to bonds); Ruano, 81 Wn.2d at 826-27 (“futile and in violation of the constitution” to repeal authority of municipality to levy tax when action reduced bondholders’ security (citing Von Hoffman, 71 U.S. (4 Wall.) at 554-55)).

¶36 Next, the intervenors contend that the initiative did not impair the Sound Transit bonds because “the power ... to change tax policy” far outweighs any impairment of the bond contract created by the initiative and Washington Constitution article VII, section 1 prohibits surrendering or contracting away the power to tax, which the intervenors contend Sound Transit did. The intervenors point to no authority for this contention. Indeed, long-standing authority is to the contrary. For example, in Continental Illinois, 696 F.2d at 699-700, the court rejected a similar argument made by defendants that a Washington municipal corporation remains subject to state regulation and cannot be allowed to contract itself out from state control. As the court explained, the “argument misperceives the nature of the restriction on state action imposed by the contract clause. As a creature of the state, a municipal corporation derives its power from the legislature. Once having granted certain powers to a municipal corporation, which in turn enters into binding contracts with third parties who have relied on the existence of those powers, the legislature (or here, the electorate) is not free to alter the corporation’s ability to perform.” Id. (citing Louisiana ex rel. Hubert v. New Orleans, 215 U.S. 170, 175-78, 30 S. Ct. 40, 54 L. Ed. 144 (1909); Wolff v. New Orleans, 103 U.S. 358, 365-68, 26 L. Ed. 395 (1880)); see also O’Brien, 86 Wn.2d at 350 (State bound not to withdraw taxing authority under *39the constitution).10 We find no merit in the justifications offered by the intervenors for the impairment of Sound Transit Bonds.

¶37 Consistent with long-standing law, we hold that section 6 of the initiative impairs Sound Transit’s contractual obligations with its bondholders in violation of the contract clause. Wash. Const, art. I, § 23.

Validity of Bond Contract

¶38 The intervenors assert that the bond contract is invalid, first challenging the formation of Sound Transit and then the terms of the bond contract. We find no merit to any of these claims.

¶39 Turning first to the intervenors’ formation challenges, intervenors argue that Sound Transit was improperly formed because the residents in King, Pierce, and Snohomish Counties did not ratify the formation of Sound Transit. As discussed above, when the voters approved taxes to implement the first phase of Sound Transit’s transit system in 1996, the voters acted in full compliance with the law in effect at that time.

¶40 Nevertheless, the intervenors claim the voters were not entitled to rely on RCW 81.112.030(8), part of the enabling statute effective in 1996, because they allege that prior amendments to the statute were improper. First, the intervenors claim that the legislature’s amendments in 1993 to RCW 81.112.030, which in part removed the requirement that voters ratify the formation of Sound Transit, violated Washington Constitution article II, section 19 because the amendment was part of an appropriations *40bill.11 Thus, the intervenors argue that the ratification requirement remained in force.

¶41 Intervenors fail to recognize that the legislature’s 1994 amendment to RCW 81.112.030 superseded the 1993 act. “[W]here a governing body takes an otherwise proper action later invalidated for procedural reasons only, that body may retrace its steps and remedy the defects by reenactment with the proper formalities.” Henry v. Town of Oakville, 30 Wn. App. 240, 246-47, 633 P.2d 892 (1981). In Henry itself, the Court of Appeals allowed a town to reenact and ratify an ordinance, originally passed without proper notice under the open meetings laws, authorizing a bond issue. See also Eugster v. City of Spokane, 110 Wn. App. 212, 39 P.3d 380 (2002) (holding that a procedural challenge to the validity of a city ordinance was moot since the ordinance had subsequently been properly enacted).

¶[42 Although our courts have not had occasion to apply this principle to claims arising out of article II, section 19 of the constitution, other jurisdictions have applied it in this constitutional context. In Mispagel v. Missouri Highway & Transportation Commission, 785 S.W.2d 279 (Mo. 1990), a Missouri statute was challenged on the ground that the bill dealt with more than one subject. The Missouri Supreme Court rejected this challenge, holding that since the reenacting bill was not subject to the alleged infirmity asserted against the 1985 bill, “[a]ny defect in the enactment, therefore, has been cured.” Id. at 281. In Nichols v. Tullahoma Open Door, Inc., 640 S.W.2d 13 (Tenn. App. 1982), the Tennessee Court of Appeals ruled moot a challenge to a Tennessee statute on the basis that the subsequent reenactment and recodification of the statute cured any constitutional defect. In Honchell v. State, 257 So. 2d 889 (Fla. 1971), the Florida Supreme Court rejected a claim that a statute defining criminal activity was invalid because its original enactment violated “double subject” provisions in the Florida Constitution *41because the statute in question had been reenacted. And in another case, the Florida Supreme Court held that any defect in the title of the original act creating a Turnpike Authority had been cured by the adoption of the revised statutes, including the act. Spangler v. Fla. State Turnpike Auth., 106 So. 2d 421 (Fla. 1958).

¶43 We conclude that even if the 1993 amendments to RCW 81.112.030(8) were not properly included in the 1993 transportation appropriations bill, in 1994 the legislature reenacted the statute in a bill, which the intervenors do not challenge as violating Washington Constitution article II, section 19. And the 1994 amendments, like the 1993 amendments, removed any reference to a requirement that the public vote on ratification of the formation of a regional transit authority. The 1994 amendments, therefore, ratified and cured any defect in the 1993 enactment.

¶44 Next, the intervenors claim that the 1994 act was ineffective, violating Washington Constitution article II, section 37 because it did not reprint the full text of RCW 81.112.030, the statute in effect in 1992.12 Instead, the 1994 act reprinted the full text of RCW 81.112.030, the amended section that was effective in 1993. The intervenors’ point is not well taken. Washington Constitution article II, section 37 requires the legislature to set forth the full length of the relevant act or section to be amended. Since the 1994 legislature was entitled to assume that the 1993 act was constitutional, the legislature properly complied with article II, section 37 by setting forth the relevant section effective at the time of the legislature’s action. See, e.g., State v. Heckel, 143 Wn.2d 824, 832, 24 P.3d 404 (2001). Accordingly, we find no constitutional infirmity with the enabling statute.

¶45 Next, the intervenors maintain that the legislature had no authority to enact RCW 81.112.030(2), authorizing the elected officials of a class of counties to *42decide whether to establish a regional transit authority, a municipal corporation. The intervenors rely on Washington Constitution article XI, section 10 as authority for their contention that a public vote is constitutionally mandated.13 The intervenors misconstrue this constitutional provision. Under the plain language of this provision, only cities and towns require a vote by the electorate to organize or incorporate. Wash. Const, art. XI, § 10 (“Cities and towns heretofore organized, or incorporated may become organized under such general laws whenever a majority of the electors voting at a general election, shall so determine.” (emphasis added)). It is well settled that other municipal corporations, such as Sound Transit, do not. See, e.g., Rood v. Water Dist. No. 24 of King County, 183 Wash. 258, 262, 48 P.2d 584 (1935) (“There is no restriction in our constitution on the power of the legislature to create municipalities, other than the requirement that it shall be done by general, and not by special, law.”); Wash. Const, art. II, § 28(6) (“[t]he legislature is prohibited from enacting any private or special laws in the following cases: . . . [f]or granting corporate powers or privileges” (emphasis added)).

¶46 The intervenors repeatedly claim that “the legislature cannot do indirectly that which it is prohibited from doing directly.” While that principle is undoubtedly true, it has no relevance in this context. Nothing in the constitution prohibits the legislature from authorizing the formation of a municipal corporation by local legislative bodies. Indeed, the statutes under challenge here are closely analogous to those upheld in CLEAN v. State, 130 Wn.2d 782, 928 P.2d 1054 (1996) and in Brower v. State, 137 Wn.2d 44, 969 P.2d 42 (1998). In sum, intervenors offer no authority for the contention that RCW 81.112.030, in effect when the voters approved of the taxes, was unconstitutional because it did *43not require the voters to ratify the formation of Sound Transit.14

¶47 The intervenors’ reliance on Washington Constitution article I, section 19 is equally unavailing.15 This section requires merely that, for matters subject to election, elections must be free and equal. State v. Wilson, 137 Wash. 125, 132, 241 P. 970 (1925) (“The provision does not mean that voters may go to the polls at any time and vote on any question they see fit, but only at the stated times provided by the statutes relating to elections.”). Moreover, Washington Constitution article I, section 19 does not apply to appointed bodies such as the Sound Transit board. See, e.g., Granite Falls Library Capital Facility Area v. Taxpayers of Granite Falls Library Capital Facility Area, 134 Wn.2d 825, 840, 953 P.2d 1150 (1998).

¶48 Next, the intervenors contend that the delegation of taxing authority to Sound Transit was unconstitutional because its board members are appointed. As mentioned above, Sound Transit’s board members consist of elected officials in the three counties plus the secretary of transportation or his or her designee. RCW 81.112.040(1). The intervenors’ argument lacks merit.

¶49 Initially, we observe that intervenors do not even mention our lengthy discussion in Larson, 156 Wn.2d at 756-64, regarding Washington Constitution article XI, section 12 and article VII, section 9, which expressly provide that the legislature may delegate local taxing author*44ity to municipalities.16 It is equally well settled that it is constitutionally permissible for the legislature to delegate taxing authority to municipal corporations with appointed board members, provided certain standards or guidelines are provided and procedural safeguards exist. Larson, 156 Wn.2d at 761-62; King County Water Dist. No. 54 v. King County Boundary Review Bd., 87 Wn.2d 536, 545, 554 P.2d 1060 (1976); Barry & Barry, Inc. v. Dep’t of Motor Vehicles, 81 Wn.2d 155, 159, 500 P.2d 540 (1972). Under the two-part test, the legislature first must provide standards or guidelines which define in general terms what is to be done and identify the entity which is to accomplish it. Larson, 156 Wn.2d at 761-64. Second, procedural safeguards must exist to control arbitrary administrative action and any administrative abuse of discretionary power. Id.

¶50 In this case, the two-part test is satisfied. The legislature has provided the necessary guidelines defining in general terms what is to be done and has properly identified the entity which is to accomplish it. In RCW 81.112.030, the legislature authorized two or more contiguous counties each having a population of more than 400,000 persons to establish a “regional transit authority.” Such authority is to “develop and operate a high capacity transportation system as defined in chapter 81.104 RCW.” Id. The regional transit authority is responsible for planning, construction, operations, and funding of transit systems within its area. See, e.g., RCW 81.104.070(2). The regional transit authority is authorized, after receiving voter approval, to levy taxes and issue bonds to finance the transit system. See, e.g., RCW 81.104.140, 81.112.030, .130. The taxes authorized, after voter approval, are limited in scope and clearly defined. See, e.g., former RCW 81.104.160(1) (regional transit authorities may submit an authorized proposition to the voters and, if approved, may levy and collect an excise tax at a rate approved by the voters, *45but not exceeding 80/100ths of one percent on the value of every motor vehicle owned by a resident of the taxing district, solely for the purpose of providing high capacity transportation service); RCW 81.104.170 (regional transit authorities may submit an authorizing proposition to the voters and, if approved by a majority of persons voting, fix and impose a sales tax solely for the purpose of providing high capacity transportation service; the maximum rate of such tax shall be approved by the voters and shall not exceed one percent of the sales price (in the case of a sales tax) or value of the article used (in the case of a use tax)). Thus, the legislature has defined in general terms what is to be done and the entity that is to accomplish it.

¶51 Second, sufficient procedural safeguards exist to control arbitrary administrative action and administrative abuse of discretionary power. The taxes imposed by Sound Transit have been clearly set forth and approved by the voters. Moreover, Sound Transit contracts with the Department of Licensing to collect the tax as provided by RCW 81.104.190. Additionally, although the members on the board are appointed, all but one of the board members are elected officials, providing the taxpayers a vote. Finally, as illustrated by Larson, the courts provide any aggrieved person with standing to challenge any discriminatory, arbitrary, or unreasonable rates. Thus, we find sufficient standards, guidelines, and procedural safeguards and find no constitutional infirmity.

¶52 Turning to the intervenors’ challenge to the validity of the bonds, the intervenors contend that the Sound Transit Bonds were invalid because Sound Transit exceeded its statutory authority under RCW 81.104.180. RCW 81.104.180 provides in relevant part:

[RJegional transit authorities are authorized to pledge revenues from the employer tax authorized by RCW 81.104.150, the special motor vehicle excise tax authorized by RCW 81.104.160, and the sales and use tax authorized by RCW 81.104.170, to retire bonds issued solely for the purpose of providing high capacity transportation service.

*46¶53 The intervenors claim that Sound Transit was authorized to pledge the MVET revenue stream only in an amount required to service the debt (payment of principal and interest payments on the debt) and could not pledge the entire revenue stream and covenant to levy and collect the tax as authorized by statute and approved by the voters in the Sound Transit district. This argument is without merit. In O’Brien, 86 Wn.2d at 350-51, the municipal corporation pledged tax revenues from MVET and sales tax as security for Metro’s bond obligations and promised to collect those taxes as authorized by state “until all the outstanding bonds had been retired.” As mentioned above, the excess coverage provided the statutorily authorized pledge “was an important reason for a favorable rating received from municipal bond rating services” and “was also an important factor in the decision of the bondholders to purchase the bonds.” Id. at 350. Sound Transit’s pledge of the MVET revenues is equivalent to that in O’Brien and in no way exceeds its statutory authority.17

¶54 We hold that the formation of Sound Transit was constitutional and that the Sound Transit Bonds are valid contractual obligations.

Additional Claims

¶55 The intervenors assert that if the initiative impairs the Sound Transit Bonds, this court should order Sound Transit to retire the Sound Transit Bonds. Although the intervenors concede that under the bond contract, the bonds are outstanding until 2028, that Sound Transit has *47pledged the MVET as security for the bonds, and that Sound Transit has covenanted to collect the MVET for as long as the bonds are outstanding, the intervenors argue that the court should require early retirement because Sound Transit retained the right to defease the bonds, among other rights. This argument is without authority and violates several constitutional principles.18

¶56 Article I, section 23 of the Washington Constitution declares that “[n]o . . . law impairing the obligations of contracts shall ever be passed” (emphasis added). There is no constitutional authority for a court to rewrite the contract. See, e.g., Tyrpak, 124 Wn.2d 146 (striking law that impaired bond contract); Ruano, 81 Wn.2d 820 (striking initiative that impaired bond contract); O’Brien, 86 Wn.2d 339 (prohibiting legislature from taking action that reduced bondholders’ security); Caritas Servs., 123 Wn.2d 391 (legislative provisions impaired state contracts and could not be applied to contract in effect prior to legislation); see also Cont’l Ill., 696 F.2d 692 (initiative impaired bond contracts, could not be applied to bonds issued prior to the initiative); U.S. Trust Co., 431 U.S. 1 (legislation repealing covenant which provided bond security impaired bonds, and covenant could not be repealed while bonds were outstanding).19

¶57 Indeed, the initiative itself recognized that the constitution expressly protects contracts issued prior to legislation “[i]f the repeal of taxes in section 6 of this act is judicially held to impair any contract in existence as of the effective date of this act, the repeal shall apply to any other contract.” CP at 21 (section 10 of 1-776). Such judicial intervention is contrary to the purpose of the contract clause, which is to encourage trade and the lending of credit “by promoting confidence in the stability of contractual obligations.” U.S. Trust Co., 431 U.S. at 15.

*48¶58 Moreover, such unprecedented judicial intervention would result in an end run around other constitutional prohibitions. This court upheld the constitutionality of the initiative under article II, section 19, finding that the initiative contained a single subject and an appropriate title.20 Pierce County, 150 Wn.2d 422. Crucial to our determination was section 7 of the initiative being precatory, mere “policy fluff” and not enforceable. Id. at 434-36. Section 7 of the initiative provided in part that “[i]f the repeal of taxes in section 6 of this act affects any bonds previously issued for any purpose relating to light rail, the people expect transit agencies to retire these bonds.” CP at 21. The intervenors ask this court to “revive” this inoperative part of the initiative, contrary both to the contract clause and article II, section 19 of the constitution. See Pierce County, 150 Wn.2d at 444 (Chambers, J., dissenting) (suggesting that 1-776 violates Washington Constitution article II, section 19 because section 7 of the initiative constitutes a second subject: “$30 license tabs across the entire state are not germane to the financing” of a local transit system).

159 The law should not be construed to do indirectly what it cannot do directly. Gelpcke v. City of Dubuque, 68 U.S. (1 Wall.) 175, 192, 17 L. Ed. 520 (1864) (“It is almost unnecessary to say, that what the legislature cannot do directly, it cannot do indirectly. The stream can mount no higher than its source.”); W. River Bridge Co. v. Dix, 47 U.S. (6 How.) 507, 516, 12 L. Ed. 535 (1848) (“All the powers of the states, as sovereign states, must always be subject to the limitations expressed in the United States Constitution .... What is forbidden to them, and which they cannot do directly, they should not be permitted to do by color, pretence, or oblique indirection.”). We will not give effect to a provision that would result in a violation of the single subject requirements by directing the parties to order their financial affairs in a manner that coerces compliance with *49unlawful legislation. To do so would, in Chief Justice Marshall’s words, “subvert the very foundation of all written constitutions.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178, 2 L. Ed. 60 (1803).21

¶60 Accordingly, consistent with the constitution and long-standing law including Tyrpak, Ruano, and O’Brien, we reject the intervenors’ invitation to rewrite the bond contract and ignore the constitution.

Refund of Vehicle License Fees

¶61 The intervenors claim that the trial court erred in issuing its “Final Order Establishing the Terms for the Refunds of the Local Vehicle Licensing Fees and Gross Weight Vehicle Fees.” In Pierce County, this court remanded the case to the trial court for refunding of those *50fees. 150 Wn.2d 422. Pursuant to the trial court’s order, the State refunded the $15 vehicle license fees paid by King County and Pierce County residents, which the State had held during the pending litigation in Pierce County. The intervenors claim that the two counties were required to refund the vehicle license fees with interest. The interve-nors’ claim is without merit. Contrary to their assertion, RCW 4.56.110, which provides for interest on certain judgments, is inapplicable because a refund of fees is not a judgment. Moreover, the intervenors fail to point out that neither the initiative nor the relevant statutory provisions governing vehicle licensing fees provide for payment of interest on refunds of such fees. See CP at 19-22; compare RCW 46.68.010 (no provision for interest on refunds of vehicle license fees) with RCW 82.02.080 (provides for interest on refunds of impact fees). Thus, the trial court did not err in issuing its order because there is no authority for interest to be paid on refunds of such fees.22

Attorney Fees

¶62 The intervenors request attorney fees under the common fund doctrine. Attorney fees are not awarded unless expressly authorized by contract, statute, or recognized equitable exception. See, e.g., Bowles v. Dep’t of Ret. Sys., 121 Wn.2d 52, 71-72, 847 P.2d 440 (1993); Seattle Sch. Dist. No. 1 v. State, 90 Wn.2d 476, 540, 585 P.2d 71 (1978). Under the common fund doctrine, a narrow equitable exception, attorney fees will be awarded only when a party creates or preserves a common fund for the benefit of others in addition to themselves. Bowles, 121 Wn.2d at 70-71; Seattle Sch. Dist. No. 1, 90 Wn.2d at *51540-45. Here, the intervenors did not prevail and create or preserve a common fund. Accordingly, the intervenors are not entitled to attorney fees.

CONCLUSION

f 63 As a result of a vote in 1996 by citizens in King, Pierce, and Snohomish Counties, the legislature authorized Sound Transit to collect taxes in the three-county region in order to construct a transportation system. Based on its statutory authority, Sound Transit pledged the revenue from these taxes to the payment of principal and interest on bonds necessary to finance the transportation system. Nearly four years after the Sound Transit Bonds were issued and sold to investors, 1-776 was proposed to repeal Sound Transit’s authority to collect the MVET. Although a majority of the voters in the three-county transportation district did not approve the initiative, 1-776 was passed by a majority of the State’s voters.

164 Section 6 of the initiative provides for repeal of the MVET, while section 10 anticipates that the MVET repeal may unconstitutionally impair some contracts existing at the effective date of the act.

f65 In this case we are asked to decide whether 1-776 conflicts with Washington Constitution article I, section 23, which guarantees that “[n]o . . . law impairing the obligations of contracts shall ever be passed.” The purpose of the contract clause is to lend certainty to the reliability of contractual pledges. Such certainty is essential to the ability of state and local governments to obtain credit through the capital markets. We find that section 6 reduced the Sound Transit bondholders’ security. Accordingly, we hold that section 6 impermissibly impairs the contractual obligations between Sound Transit and the bondholders. Thus, 1-776 has no legal effect of preventing Sound Transit from continuing to fulfill its contractual obligation to levy the MVET for so long as the bonds remain outstanding.

*52f 66 If we accepted the intervenors’ invitation to fundamentally alter our contracts clause jurisprudence, we would imperil the ability of state and local governments to finance essential public works projects such as elementary schools, fire stations, highways, and bridges by casting considerable doubt on the reliability of pledged funding sources. We decline to do so.

¶67 We note, however, that nothing in our decision today forecloses Sound Transit from electing to retire the bonds early. We also note that this court lacks the authority to compel that result.

¶68 We affirm the trial court’s summary judgment order in favor of Sound Transit and its final order on the refund of vehicle license fees.

Alexander, C.J.; C. Johnson, Bridge, Chambers, Owens, and Fairhurst, JJ.; and Schultheis, J. Pro Tem., concur.