Annexation Blues

by Robert Herold

The City Council has decided to drop, for now, its attempt to annex the Yardley area. Recently, the Washington Supreme Court overturned annexation plans in Moses Lake and Yakima. All of this may once again remind us that a state constitution written to emphasize the populist values of equality may well be a constitution written so as to make effective government all but impossible.

Briefly, the cities of Moses Lake and Yakima, having (like Spokane) previously extended services into adjacent unincorporated areas, armed with covenants and a recently approved urban growth boundaries, sought annexation through the process known as petition. On the books since 1945, this process is weighed heavily in favor of property owners with high-value property. An older process, a straight-up popular vote, remains on the books, but is seldom used by cities.

While holding that the petition process was in compliance with the 14th Amendment and ruling that it did pass all other constitutional tests, Washington's Supreme Court ruled that it was out of compliance with the Washington State Constitution's stipulation regarding privileges and immunities, or equal protection. And why? Because, asserted the Court, the Washington State Constitution sets the bar higher than does the U.S. Constitution.

The Court actually went out of its way to give the petition a clean bill of health as regards to the 14th Amendment (which covers equal protection). The Court majority even acknowledged that "recent cases have held that the privileges and immunities clause [in the state constitution] is substantially similar to the equal protection clause." But then it makes a giant leap with this line: "...we have also left open the possibility that article 1, section 12 could provide greater protection than the federal equal protection clause."

In the written decision, this aside leads to a lengthy hair-spitting exercise. The Court struggles to draw the distinction between "majoritarian threats of invidious discrimination" (that's the federal concern) and "laws serving private interest to the detriment of the majority" (that's the state concern).

And the envelope, please.

Notably, the Court never returns to the concept of "detriment of the majority." If they had, they might have been forced to consider how their ruling would hurt the majority of the people living in Moses Lake or Yakima, whose elected leaders wanted to provide urban services more efficiently. The Court introduces the very Madisonian notion of detriment but fails to incorporate it into its decision.

Justice Barbara Madsen, in her minority opinion, points out that as far as she knows, this is the first time the Court has taken it upon itself to make a ruling of such great consequence out of a case of such limited appeal. Moreover, she points out, the Court shows a certain arrogance by not deferring to the legislative interests and intent when they are so clearly spelled out. Beyond the clear articulation of the annexation process, why would the Legislature have ever passed the Growth Management Act if it didn't intend to have it enforced?

And while all attention has been on the issue of annexation, it's hard to see how the decision's larger impact won't be on the Growth Management Act. To the glee of some but the detriment of all, the decision seems to gut the GMA by making the urban growth boundaries largely meaningless.

But there may still be a way out, for the state Legislature needn't allow a vote at all -- or a petition, for that matter. The Court has ruled that if and when the Legislature provides for a vote, that vote process must conform to this higher standard; but the Court also reminds us that cities and counties have no constitutional protection. They are creations of the state, and it is from the state that they are delegated their authority. So to get around the whole mess, perhaps the Legislature could simply to rewrite the annexation code so as to reflect the Court's decision. Cities could be the originating petitioners, but the petition would go to the Legislature to be ratified by a vote of both houses and signed by the governor. In the end, we would likely be better off that way, but getting such a code enacted is nowhere near certain.

Of interest in this present situation are the fire districts. These legal fabrications fall into the category of special districts, be they port districts, school districts or fire districts. They have their own limited independence because they have their very own revenue stream. Annexation threatens that revenue stream; thus, whenever annexation comes up, it's the fire districts that yell the loudest.

Ironically, our body politic resorted to government by special district because it had so emasculated general purpose government like cities. Without a doubt, the Court decision furthers that emasculation.

Once formed, these districts become just another special interest. And that's another irony, isn't it?

In the meantime, we can, with reasonable certainty, list some of the likely consequences of this -- how shall I say it -- adventuresome ruling:

1. Sprawl will worsen as the effects of gutting the Growth Management Act come home to roost.

2. Pressure for new road construction will rise accordingly.

3. Funding for road repair will need to increase or roads will be left to crumble.

4. Cities will no longer extend services into unincorporated areas ahead of annexation, with the result that economic development will be slowed.

5. Cities may well have to go to court to capture payment for past infrastructure investment. More litigation is on the way.

6. An ever-more-fragmented tax base for general purpose government will result in the creation of more special districts, with all that implies.

7. Unincorporated citizens will continue to enjoy their greater-than-equal protection, and city residents will continue to foot much of the bill .

8. Downtown cores will continue to deteriorate, as social problems rise and tax bases stagnate.

A final thought on the idea of applying equal protection here: the late U.S. Supreme Court Justice Robert Jackson wrote years ago that the clause is not absolute. Equal protection, he believed, could lose its primacy over "reasonable differentiation fairly related to the object of regulations." What's unreasonable about letting cities grow -- as they inevitably do -- in the manner that has been accepted for more than half a century? And if governments cannot regulate their own growth, what are they for? Clearly, Justice Jackson never lived in Washington state.