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Attorney General releases formal opinion on I-1185

In response to a request from Rep. Judy Clibborn, chair of the House Transportation Committee, the Attorney General’s Office  released a formal Attorney General’s Opinion regarding the impact of Initiative 1185 on the Transportation Commission’s authority to set tolls and ferry fares.

State law gives the Transportation Commission power to set ferry fares and tolls. Hundreds of similar statutes give other state agencies authority to set fees for particular services, from licensing fees to candidate filing fees.

Initiative 1185, approved in 2012, provides that state fees may only be imposed or increased with legislative approval. Initiative 960 in 2007 and Initiative 1053 in 2010 included the same requirement.

The opinion concludes, based on Initiative 1185’s plain language, that the legislative approval required by the initiative may come in many forms.

For example, the Legislature could vote on the amount of a particular fee, or the Legislature could vote to allow an agency (such as the Transportation Commission) to set fees within certain limits, as it has often done.

This conclusion is consistent with several prior, informal opinions on this subject issued by attorneys in our office. Informal opinions go through a less rigorous review than formal opinions and represent only the views of the attorneys who authored them, rather than the official view of the Attorney General’s Office.

The opinion also concludes that, where the Legislature has already passed a statute giving an agency authority to set fees (as with the Transportation Commission), Initiative 1185 does not repeal such statutes or otherwise require new legislative approval.

Initiative 1185 never mentions the hundreds of statutes granting fee-setting authority to agencies, so its plain language provides no basis for finding these statutes obsolete.

Some prior, informal opinions from attorneys in our office had suggested that new authorization was required, but these opinions relied on an approach to statutory construction that is unsupportable in light of subsequent developments, as explained in the opinion.

Formal opinion states:

“Initiative 1185 simply states that a fee may only be imposed or increased if approved by a majority vote in the Legislature. It does not repeal or amend the hundreds of other statutes in which the Legislature has already approved the imposition or increase of fees, and it makes no distinction as to when legislative approval must occur. Because the Legislature has already approved the Transportation Commission’s authority to set toll rates and ferry fares, Initiative 1185 requires no further legislative approval.”

Background on AGO opinions

Attorney General Opinions are issued only at the request of members of the state Legislature, statewide elected officials, appointed heads of state agencies, boards and commissions and county prosecuting attorneys.

Formal Attorney General’s Opinions are statements of the Attorney General’s official views on legal questions relating to the duties of a public officer. They are not binding on the courts, but are usually given careful consideration and respect.

When an opinion is requested the office first decides whether the request is appropriate for an opinion. If so, there is a lengthy research, drafting, and review process.

For formal opinions, the office publishes a notice in the state register and considers comments submitted by the public.

The opinions are carefully drafted by an assigned attorney, reviewed by Assistant Attorneys General, the Opinions Chief, the Solicitor General and the Attorney General.

By contrast, informal opinions go through a shorter and less rigorous review process, are not published, and represent only the views of the Assistant Attorney General who authored them, not the views of the Attorney General’s Office.

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