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Supreme Court of the State of Washington

                            Opinion Information Sheet

Docket Number:       73413-5
Title of Case:       Sane Transit et al V Sound Transit
File Date:           03/04/2004
Oral Argument Date:  06/10/2003


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court of King County
Docket No:      02-2-15207-4
Judgment or order under review
Date filed:     11/08/2002
Judge signing:  Hon. John Erlick


                                    JUSTICES
                                    --------
Authored by Gerry L Alexander
Concurring: Faith Ireland
            Barbara A. Madsen
            Bobbe J Bridge
            Susan Owens
            Mary Fairhurst
Dissenting: Charles W. Johnson
            Richard B. Sanders
            Tom Chambers


                                COUNSEL OF RECORD
                                -----------------
Counsel for Appellant(s)
            Bradley H. Bagshaw
            Helsell Fetterman LLP
            1001 4th Ave Ste 4200
            Seattle, WA  98154

            Connie K. Haslam
            Helsell Fetterman LLP
            1001 4th Ave Plaza Ste 4200
            Seattle, WA  98154

            David Florian Jurca
            Helsell Fetterman LLP
            1001 4th Ave Plaza Ste 4200
            Seattle, WA  98154

Counsel for Respondent(s)
            Desmond Leoron Brown
            Sound Transit Union Station
            401 S Jackson St
            Seattle, WA  98104-2826

            Paul J. Lawrence
            Attorney at Law
            925 4th Ave Ste 2900
            Seattle, WA  98104-1158

Amicus Curiae on behalf of King County
            Thomas William Kuffel
            Attorney at Law
            E550 King County Courthouse
            516 3rd Ave
            Seattle, WA  98104-2385

            Noel Reynolds Treat
            King  Co Courthouse
            516 3rd Ave Rm E550
            Seattle, WA  98104-2385

Amicus Curiae on behalf of Association Of Washington Cities
            Sheila Marie Gall
            Association of Washington Cities
            1076 Franklin St SE
            Olympia, WA  98501-1346

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

SANE TRANSIT, a Washington non-profit            )
corporation, and MARK BAERWALDT, for             ) No. 73413-5
themselves and on behalf of taxpayers,           )
                                                 )
                    Appellants,                  )
                                                 )
     v.                                          ) En Banc
                                                 )
SOUND TRANSIT, officially known as the           )
CENTRAL PUGET SOUND REGIONAL                     )
TRANSIT AUTHORITY, a Washington                  )
municipal corporation,                           )
                                                 )
                    Respondent.                  )
                                                 ) Filed March 4, 2004

     ALEXANDER, C.J. -- We have been asked to overturn a decision of the
King County Superior Court in which that court dismissed an action by Sane
Transit, a Washington nonprofit corporation, and Mark Baerwaldt
(collectively "Sane Transit").  In that action Sane Transit sought to
enjoin Sound Transit from expending funds collected from local taxes for
construction of a 14-mile light rail line from downtown Seattle to Tukwila.
Sane Transit contends that the planned light rail line is an unlawful
"substantial deviation" from a planned 21-mile light rail line that had
been approved by voters.  We affirm the trial court, holding that when the
voters approved the implementation of a regional transportation system they
granted Sound Transit the discretion to scale back the light rail project
in the event of unforeseen circumstances.
I
     In 1992, the Washington Legislature authorized any two or more
contiguous counties with populations of 400,000 or more to create a
regional transit authority to address traffic congestion.  Shortly
thereafter, the legislative bodies of the counties of Snohomish, King, and
Pierce each passed a resolution establishing Sound Transit (officially
known as the Central Puget Sound Regional Transportation Authority).1  It
was invested with the authority to design and implement a high capacity
transportation system in a "service area" (hereinafter referred to as Sound
Transit's "district") within those counties.  RCW 81.112.030(1), .050(1);
see also Clerk's Papers (CP) at 340.  Sound Transit's district boundary
stretches generally from Dupont in Pierce County to Everett in Snohomish
County, and from the eastern edge of Puget Sound in the west to Issaquah in
east King County.  It is governed by an 18-person board whose membership is
comprised of the Washington Secretary of Transportation and elected
officials from Snohomish, King, and Pierce Counties.
After the voters rejected Sound Transit's 1995 proposal for a $6.9 billion,
16-year regional transit plan, Sound Transit promulgated a second, less
ambitious plan in May 1996.  This plan, entitled "Sound Move: The Ten-Year
Regional Transit System Plan" ("Sound Move"), was envisioned to encompass
10 years of planning and construction at a cost of $3.9 billion (in 1995
dollars) to complete.  See CP at 14-57; Decl. of Joni Earl, Ex. B.  The
plan consisted of four primary projects: a high-occupancy-vehicle (HOV)
expressway, a system of regional express buses, commuter rail (the
"Sounder"), and electric light rail.
The plan envisioned a 21-mile electric light rail line running from
Seattle's University District to the Seattle-Tacoma International Airport
in the City of SeaTac. The line was to run through downtown Seattle and the
Rainier Valley neighborhood in south Seattle on its way to the airport.  An
extension of the light rail line further north to the Northgate shopping
center was envisioned, but only if sufficient funds remained after
construction of the line from the University District to the airport.2  The
cost of constructing the 21-mile light rail line was estimated at $1.8
billion (in 1995 dollars).
In August 1996, Sound Transit passed "Resolution No. 75" which authorized
submission of Sound Move to the voters for their consideration.  CP at 413-
26.  The proposition, called "Proposition 1," provided for a 0.4 percent
sales and use tax increase and a 0.3 percent increase in the motor vehicle
excise tax for the residents within the Sound Transit district.  CP at 415.
The money generated by the imposition of these taxes was to be the primary
source of funds for the planning, development, operation, and maintenance
of the planned projects set forth in Sound Move.3  As required by statute,
the voting public was provided with an 8-page pamphlet that summarized the
36-page (plus appendices) Sound Move plan.4  The pamphlet was also entitled
"Sound Move: The Ten-Year Regional Transit System Plan."  Decl. of Joni
Earl, Ex. E.  Voters also received a voters' pamphlet which included the
ballot title, a brief explanatory statement, and statements for and against
the measure.  The voters' pamphlet also indicated that the complete text of
the measure could be reviewed at the auditor's office of the county in
which the voter resided.5  Resolution 75 was the measure on file with those
offices.
The ballot title for Proposition 1 on the November 5, 1996, general
election ballot stated:
To implement a regional rail and express bus system linking Tacoma,
Seattle, Bellevue, Everett, other cities, and Sea-Tac 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 Plan"?

CP at 60.  A majority of the voters in the Sound Transit district approved
Proposition 1.6
By September 2000, Sound Transit became aware that, due to unforeseen
circumstances, it would not be able to construct the light rail line within
a 10-year period and within the estimated budget.7  Sound Transit now
estimated the cost of constructing the 21-mile light rail line at $2.5
billion (in 1995 dollars), rather than the original estimated $1.8 billion
(in 1995 dollars).  By April 2001, Sound Transit concluded that the
estimated cost of completing the proposed light rail line had risen even
further to $4.164 billion.
     On November 29, 2001, faced with the specter of increased construction
costs, Sound Transit adopted a resolution that scaled the light rail
project down to a 14-mile light rail line running from downtown Seattle to
Tukwila with a bus shuttle from the City of Tukwila to Seattle-Tacoma
International Airport.  The resolution authorized construction to begin in
2002 with a projected 2009 completion date.  The cost of constructing the
14-mile line was estimated at approximately $1.5 billion in 1995 dollars,
or approximately $2.07 billion in year of expenditure dollars.  Following
adoption of the plan calling for a shortened light rail line, Sound Transit
indicated its intent to extend the line to complete substantial portions of
the additional planned 7 miles of line, either north to the University
District or south to the airport, with the remaining $1.2-$1.4 billion it
anticipated it would have following construction of the 14-mile line.
Sound Transit's adoption of the plan for a scaled back light rail line
prompted Sane Transit to file an action against Sound Transit in King
County Superior Court.  In its action Sane sought a declaratory judgment
that construction of a 14-mile line over a 13-year period was an unlawful
substantial deviation from the project approved by the voters.  Sane
Transit also requested an injunction preventing Sound Transit from spending
local taxes on the scaled back 14-mile light rail line and an order barring
Sound Transit from using taxpayer funds to build the light rail line.
After consideration of Sane Transit's motion for summary judgment, as well
as Sound Transit's cross motion for dismissal, the superior court concluded
that although it was undisputed that the modifications to the light rail
line "substantially deviated" from the adopted plan, the voters had granted
Sound Transit the discretion to construct a shortened light rail line.  It
concluded that both Resolution 75 and the eight-page summary brochure were
instructive in determining the voters' intent, and that they "must be read
together for purposes of determining the scope of authority of Sound
Transit."  CP at 855.  Based on the language in Resolution 75 authorizing
Sound Transit to make certain changes to the Sound Move project, as well as
the conclusion that the eight-page brochure did not guarantee the project
would be completed "`on time, on budget,'" the trial court dismissed Sane
Transit's action with prejudice.  CP at 856.  Sane Transit sought direct
review of that ruling in this court and we granted its petition.  Sane
Transit also requests that we grant it reasonable attorney fees.
II
We review the trial court's decision on cross motions for summary judgment
de novo.  Berger v. Sonneland, 144 Wn.2d 91, 102-03, 26 P.3d 257 (2001);
Citizens for More Important Things v. King County, 131 Wn.2d 411, 415, 932
P.2d 135 (1997).  A motion for summary judgment is properly granted when
"there is no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law."  CR 56(c).
The broad question before us is whether Sound Transit's adoption of a
scaled back light rail line that will take more than 10 years to complete
was an unlawful substantial deviation from the plan approved by the voters.
This question must be viewed in light of established law in Washington that
when voters approve taxes for a public project any major deviation to the
project is not within the government's lawful power.  O'Byrne v. City of
Spokane, 67 Wn.2d 132, 136-37, 406 P.2d 595 (1965); Davis v. City of
Seattle, 56 Wn.2d 785, 789-90, 355 P.2d 354 (1960); George v. City of
Anacortes, 147 Wash. 242, 244-46, 265 P. 477 (1928); Hayes v. City of
Seattle, 120 Wash. 372, 374-75, 207 P. 607 (1922); Thompson v. Pierce
County, 113 Wash. 237, 241, 193 P. 706 (1920).  While minor details in a
public project may be changed by the governing agency, taxpayer funds may
not be used to construct a substantially different project than the one
approved by voters.  See O'Byrne, 67 Wn.2d at 136-37; Davis, 56 Wn.2d at
789-90; George, 147 Wash. at 244-46; Thompson, 113 Wash. at 241-42.
A.  The length of the light rail line
There is no disagreement that the reduced 14-mile light rail line is a
substantial deviation from the 21-mile light rail line approved by the
voters.  The trial court so found, and Sound Transit does not dispute that
conclusion.  Sound Transit  contends, however, that the deviation is not
unlawful because, in its view, the voters granted it the discretion to
scale back the light rail project if funding for its construction should
prove to be insufficient.  It argues, therefore, that although most major
deviations from a voter approved public project are prohibited, the
deviation in this case is not.
We agree that the significant question is not whether the shortened light
rail line is a substantial deviation from the proposed plan approved by the
voters.  Rather, it is whether the deviation was lawful because the voters
granted Sound Transit discretion to change the plan.  As we stated in
Hayes, "{t}he question is one of construction of contract, and that
contract is expressed in the original ordinance.  If the terms of that
instrument do not permit the proposed change, then it cannot be made,
regardless of the advantages which might result."  Hayes, 120 Wash. at 375.
It is clear that the corollary principle is also true: if the "contract"
approved by voters authorizes substantial deviations to a project under
particular circumstances, then the agency may lawfully make such changes.
Sound Transit relied upon language in Resolution 75 in wielding its
discretionary authority.  That resolution, as we have observed, was adopted
in 1996.  It incorporated the Sound Move plan and directed that voters in
the Sound Transit district consider the plan and approve local taxes for
its implementation.  As we conclude below, Resolution 75 was the enabling
legislation for the Sound Move project, and it was the measure approved by
the voters.  Sound Transit relied on section 2 of Resolution 75 in making
its decision to construct a 14-mile light rail line over the course of 13
years.  Section 2 of the resolution provides that
In the event that the proceeds of federal contributions, plus any other
moneys of the RTA {Regional Transportation Authority, Sound Transit}
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.

CP at 415 (emphasis added).  Both Resolution 72 and Appendix B to the Sound
Move plan, incorporated by Resolution 75, provide that where "actual and
projected expenditures exceed {the} actual and projected revenues and
funding sources by 5 percent or greater, and/or where unforeseen
circumstances occur which would result in an inability to substantially
complete projects within {the} plan," the Board is required to
take one or more of the following actions:
    Correct the shortfall through use of such . . . uncommitted funds and
/ or bond capacity which is available . . .; and/or
    Scale back the . . . plan or projects within the plan to match a
revised budget; and/or
    Authorize a vote of the RTA District on a revised ballot measure.

Decl. of Joni Earl, Ex. B App. B at B-4.  Sound Transit claims that the 14-
mile light rail line is a scaled back version of the 21-mile light rail
line that it adopted due to unforeseen costs.
Sane Transit responds that Sound Transit could not scale back the light
rail line project because the full text of Resolution 75 was not sent to
the voters or included in the official voters' pamphlets distributed by the
counties.  It contends that the voters were unaware they were granting any
such discretion to Sound Transit and could not have approved Resolution 75.
It urges that the trial court erred in concluding otherwise.
We disagree.  Sane Transit relies upon the principle that acts approved by
the people are construed by focusing on the language of the proposal as the
average informed voter would read it.  See Amalgamated Transit Union Local
587 v. State, 142 Wn.2d 183, 205, 11 P.3d 762, 27 P.3d 608 (2000); State ex
rel. Evergreen Freedom Found. v. Wash. Educ. Ass'n, 140 Wn.2d 615, 637, 999
P.2d 602 (2000); City of Spokane v. Taxpayers of City of Spokane, 111 Wn.2d
91, 98, 758 P.2d 480 (1988).  In cases where voters are not provided with
the full text of the measure to be voted upon, Sane Transit would have us
ignore the language of the measure and attempt to construe the measure
based on extrinsic documents sent to the voters which the average informed
voter may or may not have read.  An inquiry into the voter's subjective
understanding of what he or she thought he or she was enacting is a task we
will not undertake.  See generally Amalgamated Transit, 142 Wn.2d at 205
(inquiry into the voters' intent will not occur where the text of an
initiative is unambiguous); City of Spokane, 111 Wn.2d at 97 (court will
avoid entering the realm of pure speculation about what individual voters
were thinking, nor will it assume voters do not read or understand the
measure presented to them).
Reference to the statutes governing placement of a proposal for a high-
capacity transportation system on a ballot leads us to conclude that
Resolution 75 was the approved proposal.  RCW 29.79.035(1) requires the
ballot title to contain a concise description which "must . . . clearly
identify the proposition to be voted on."  See also RCW 29.27.066.  RCW
81.104.140(7) requires reference in the ballot title to the summary
pamphlet sent to voters.  In order for the ballot title, which has not been
challenged, to comply with these statutes, it must be concluded that
Resolution 75 is the identified proposition and the eight-page "Sound Move:
The Ten-Year Regional Transit System Plan" is the summary pamphlet sent to
voters.
We have previously indicated that where the ballot title would lead to an
inquiry into the body of the act, proper notice, as required by article II,
section 19 of the Washington Constitution, has been given to the voter
about what he or she is deciding.  Wash. Fed'n of State Employees v. State,
127 Wn.2d 544, 555, 901 P.2d 1028 (1995).  Similarly in this case, although
Sane Transit claims that the voters did not realize which proposal they
were voting on, the ballot title informed the voters that Resolution 75 was
the proposal to be enacted, and the resolution was available for
consideration by request to the office identified in the voters' pamphlet.
Sane Transit further argues that reliance on the ballot title does not
satisfy the requirement in article II, section 1(e) of the Washington
Constitution that the voters be allowed to "study the measures prior to
election."  The requirements of article II, section 1(e) of the Washington
Constitution are implemented by chapter 29.81 RCW which governs the voters'
pamphlet.  Wash. Fed'n of State Employees, 127 Wn.2d at 553.  Sane Transit
does not challenge the voters' pamphlet.  It does, however, contend that
Resolution 75 is not the enabling legislation for the Sound Move project
because the full text of the resolution was not set forth in the voters'
pamphlet.
Sane Transit's argument is unpersuasive.  The voters' pamphlet was required
to contain "{t}he text of each measure."  RCW 29.81A.040(3); see also RCW
81.104.140(9) (requiring a voters' pamphlet).  If the word "text" in RCW
29.81A.040(3) means full text as Sane Transit suggests, then the voters'
pamphlet was invalidly drafted because it did not include the full text of
any proposed legislation.8  We reject Sane Transit's argument, concluding
that RCW 29.81A.040(3) is unhelpful because the voters' pamphlet did not
set forth the full text of any legislation.  Moreover, the validity of the
voters' pamphlet is not before us because Sane Transit is not challenging
its validity nor could it as the time period for contesting it has long
passed. 9  Instead, we agree with the trial court's conclusion that the
voters' pamphlet and the summary pamphlet were not sufficient to inform the
voters of the detailed aspects of a multibillion dollar transportation and
financing plan, and could not be considered enabling legislation. 10
Resolution 75 which provides those details is the legislation adopted by
the voters.
Justice Sanders's dissent asserts that if Resolution 75 were the
legislation adopted by the voters, then only that portion of the resolution
authorizing an "increase in sales taxes and motor vehicle excise taxes" was
adopted.  Dissent of Sanders, J., at 20.  As noted above, the legislation
adopted by the voters must be sufficient in detail.  The only document with
sufficient detail for enabling legislation is Resolution 75, and even
Resolution 75 is sufficient only when it is viewed in its entirety.11
As set out above, section 2 of Resolution 75 recognized that taxpayer funds
might exceed anticipated costs or that revenues might be insufficient, and
directed the agency to take certain action in either event.  Where funds
were insufficient, Sound Transit was authorized to use the available funds
"to pay for other capital and/or service improvements that achieve the
stated goals of {the Ten-Year Regional Transit System} plan, as the Board
in its discretion shall determine as appropriate or necessary," including
scaling back the scope of an individual project in the 10-year plan.  CP at
415.  We conclude, therefore, that Sound Transit acted within its authority
in adopting a plan for a 14-mile light rail line.
B.  Construction of the light rail line and collection of local taxes
beyond the
10-year period
Sane Transit asserts, additionally, that even if the voters adopted
Resolution 75 and authorized Sound Transit to scale back the light rail
line project, Sound Transit's plan to extend the construction period beyond
the 10-year period and to collect taxes beyond that 10-year period to
finance the construction is an unlawful substantial deviation that is not
authorized by the discretionary authority granted in Resolution 75.12  Sane
Transit indicates in this regard that Sound Transit assured voters the
Sound Move project would take only 10 years by calling it "The Ten-Year
Transit System Plan."
Sane Transit's argument does not, however, find support in the measure
approved by the voters.  Resolution 75 does not itself state any limits on
the construction or taxation period.13  Instead, it instructs the agency to
construct those projects in the Sound Move plan that are feasible with the
funds raised by the voter approved local taxes.  In the event of
insufficient funds, Resolution 75 requires Sound Transit to pay for the
costs of the improvements "deemed . . . to be most necessary" and in the
best interests of the project.  CP at 415 ("{T}he RTA shall use the
available funds for paying the cost of those improvements that are
contained in the Ten-Year Regional Transit System Plan . . . .").
Neither does the information received by the voters support Sane Transit's
argument.  The summary brochure mentions the 10-year period only two times.
One reference states that the University District to the Northgate shopping
center "segment would be built during the ten-year plan period only if
additional funding is available."  CP at 301.  Another states "{t}he RTA
Board is committed to completing Sound Move within ten years of voter
approval."  CP at 303.  Neither of these references constitutes more than a
pledge to complete the project on time.
It is true that references to the construction time period in the more
detailed version of Sound Move indicate a serious commitment to completion
of the project within ten years.  The following statements are examples of
references to the 10-year period set forth in the Sound Move plan:
System completion within ten years -- different parts and segments of the
plan will be implemented in stages and be operational as soon as possible;
the entire system will be completed and operational within ten years.

CP at 26 (emphasis added).

The ten-year timeframe for putting the plan in place begins the day after
voters approve funding for the new regional transit system. . . .
. . . {T}he entire system should be up and running within 10 years. . . .
{T}he RTA will use a variety of techniques to make sure that the system is
developed and operated as cost-effectively as possible.

CP at 45 (emphasis added).

The proposal to be placed before the voters will be a ten-year construction
plan financed in part by long-term bonds.  As elements are completed, they
will begin operating during that ten-year period.  After the ten-year
period, the RTA's tax revenues will be used to continue transit operations
and pay for debt service. . . .
The RTA is committed to building and operating a ten-year system plan that
can be confidently funded and completed as promised to the region's
citizens.

CP at 52.

{T}en-year implementation -- Different parts and segments of the plan will
be implemented in stages and be operational as soon as possible.  The RTA
is committed to the entire system being completed and operational within 10
years.

CP at 53.

Sound Transit argues that these and other similar statements were merely
declarations of the principles of the plan.  We agree with Sound Transit's
characterization of the above statements.  Declarations of principles,
purposes, and aims are not operative rules of action and do not give rise
to enforceable rights or create legal obligations.  See Melville v. State,
115 Wn.2d 34, 38, 793 P.2d 952 (1990); Int'l Union of Operating Eng'rs
Local No. 286 v. Sand Point Country Club, 83 Wn.2d 498, 505, 519 P.2d 985
(1974); Whatcom County v. Langlie, 40 Wn.2d 855, 863, 246 P.2d 836 (1952).
We conclude, therefore, that there is no legal obligation under the
statements in the Sound Move summary brochure or the detailed Sound Move
plan for Sound Transit to complete the light rail line within ten years.
Pursuant to the language in Resolution 75, Sound Transit must complete the
project to the extent possible based on the funds available.
Insofar as continuing the local taxes, Sane Transit claims that the imposed
sales and use, and motor vehicle taxes were also restricted to a 10-year
collection period.  Sound Transit responds that the taxes are permanent and
for the construction, operation, and maintenance of the projects in the Ten-
Year Regional Transit System Plan.  In sections 3 and 4 of Resolution 75,
the Sound Transit Board stated:
For the sole purpose of providing funds for the planning, development,
operation, and maintenance of a high capacity transportation system . . .
the RTA shall levy and collect a sales and use tax not to exceed four-
tenths of one percent and levy and collect a motor vehicle excise tax of
three-tenths of one percent . . . if such local option taxes are approved
by the voters within the RTA boundaries . . . .
. . . . The Board intends for the levy and collection of the motor vehicle
excise tax and the sales and use tax to begin on January 1, 1997.

CP at 415 (emphasis added).  This language indicates that the board
intended to continue taxation beyond the projected 10-year construction
period.  Language in the full-length detailed Sound Move document also
supports this conclusion.
System expansion or tax rollback -- Any second phase capital program which
continues local taxes for financing will require voter approval within the
RTA District.  If voters decide not to extend the system, the RTA will roll
back the tax rate to a level sufficient to pay off the bonds and operate
and maintain the investments made as part of Sound Move.

CP at 26.

Any second phase capital program which continues local taxes for financing
will require approval by a vote of those . . . within the RTA District.

CP at 52.

Because transit facilities provide benefits over a long span of time, it is
reasonable to finance their construction over a period that extends beyond
the ten-year system plan construction timeframe.

CP at 53 (emphasis added).

System expansion or tax rollback - Any second phase capital program which
continues local taxes for financing will require voter approved {sic}
within the RTA District.  If voters decide not to extend the system, the
RTA will roll back the tax rate to a level sufficient to pay off the
outstanding bonds and operate and maintain the investments made as part of
Sound Move.

CP at 56.

In the financial policies appendix to Sound Move, the board indicated:

Voter approval requirement
The RTA Board recognizes its authority to fund Sound Move's future
operations, maintenance and debt service as well as any future phase
capital program through a continuation of the local taxes initially
authorized by the voters.  However, in its commitment to public
accountability, the RTA Board pledges that any second phase capital program
which continues local taxes for financing will require approval by a vote
of those citizens within the RTA District.

Sales tax rate rollback
Should voter approval for a future phase capital program not be
forthcoming, the RTA Board will initiate two steps to roll back the rate of
sales tax collected by the RTA.
a)  First, the RTA will first {sic} initiate an accelerated pay off
schedule for any outstanding bonds.  Second, the RTA will implement a tax
rollback to a level necessary to pay the accelerated schedule for debt
service on outstanding bonds, system operations and maintenance, fare
integration, capital replacement, and agency cost.
b) Once all debt is retired, the RTA will implement a tax rollback to a
level necessary to pay for the system operations and maintenance, fare
integration, capital replacement and agency administration.

Decl. of Joni Earl, Ex. B App. B at B-7.

It is apparent from the language contained in Resolution 75 and in Sound
Move and its appendices that when the voters approved the Ten-Year Regional
Transit System Plan they implemented permanent taxes.  At a minimum, taxes
were to be collected beyond the 10-year period for operations and
maintenance of the system, fare integration, capital replacement, and
agency administration.  It was also expected that taxes for construction
costs would extend beyond the 10-year period.  The only limitation on the
collection of taxes for construction was that they not be collected on a
second or any future capital phase without further voter approval.  In sum,
Sound Transit has the authority to continue to collect taxes within its
district to finance construction beyond the 10-year period, as well as for
operation and maintenance of the system.
Finally, Sane Transit asserts that the 14-mile light rail line is an
unlawful substantial deviation from the plan approved by the voters because
a grant of discretionary authority to the agency in Resolution 75 subverts
the legislative purpose behind RCW 81.104.100(2)(d) 14 and RCW
81.104.140(7).15  These statutes required Sound Transit to inform the voters
of the details of the system and financing plan.  Sane Transit claims the
purpose of these statutory requirements was to entitle the voters to make
the decision of whether the benefits of Sound Transit's proposal outweighed
its costs.  Sane Transit further asserts that a governmental authority
cannot retain the type of discretion claimed by Sound Transit for a
publicly funded project.
Sane Transit relies on Uhler v. City of Olympia, 87 Wash. 1, 151 P. 117,
152 P. 998 (1915), for the proposition that the discretionary authority set
forth in section 2 of Resolution 75 deprived the voters of the statutory
right to determine whether the benefits of the light rail plan warrant its
costs.  In Uhler, this court concluded that it would not allow a city
council to increase the necessary sum of bonds to be issued from $90,000 to
an amount of at least 10 percent more by allowing for the city to pass a
supplemental ordinance raising the amount.  Uhler, 87 Wash. at 16-17.  In
reaching this conclusion, we relied upon a statute which compelled a
reasonably definite estimate of the value.  In this case, Sound Transit has
not changed the tax rates approved by the voters.  Further, by constructing
a shortened light rail line based on its authority to scale back a project
to remain within budget, Sound Transit has not violated the voters'
statutory right to pass upon the question of taxation.  The discretionary
authority in section 2 of Resolution 75 instead provides the agency with
guidance regarding what action should be taken in the situation where funds
are insufficient and/or changed circumstances occur. 16  The record further
indicates that Sound Transit complied with RCW 81.104.100(2)(d) and RCW
81.104.140(7) when it mailed an eight-page summary pamphlet of the system
and financing plan to every registered voter.  The voters had the
opportunity to deliberate over the summary of the plan which was sent to
them.  In addition, there is nothing in the record that indicated voters
were denied the opportunity to examine the details of the plan, and
consideration of Resolution 75 was available to them.  The discretion
granted to Sound Transit in section 2 of Resolution 75 is, therefore, not
unlawful.
III
Sane Transit seeks reasonable attorney fees under the common fund doctrine.
Attorney fees, however, will not be awarded where the suit brought by a
party fails to preserve, protect, or create a common fund which benefits a
group of others in addition to the plaintiff because it is unsuccessful.
Seattle Sch. Dist. No. 1 v. State, 90 Wn.2d 476, 542, 585 P.2d 71 (1978);
Grein v. Cavano, 61 Wn.2d 498, 505, 379 P.2d 209 (1963).  In light of our
conclusion that Sound Transit was authorized to scale back the light rail
line and continue construction and taxation beyond a 10-year period, Sane
Transit is not entitled to fees.  Its request is, therefore, denied.
IV
In conclusion, we affirm the trial court's order dismissing Sane Transit's
action with prejudice.  We hold that when the voters approved the
implementation of a regional transportation system they approved Resolution
75 which granted Sound Transit the discretionary authority to scale back
the light rail line from 21 miles to a 14-mile line because unforeseen
circumstances and changes in conditions resulted in insufficient funds.  We
further hold that Sound Transit is not restricted to constructing the light
rail line within a 10-year period, which concludes in 2006, and may
continue the sales and use tax of up to four-tenths of one percent and a
motor vehicle excise tax of three-tenths of one percent approved by the
voters.  We deny Sane Transit's request for attorney fees.

WE CONCUR:

1According to the April 1, 2000, federal census, only four counties in
Washington state have a population in excess of 400,000.  Washington State
Yearbook 301 (Scott D. Dwyer & Mary B. Dwyer eds., 2003).  Three of them
are contiguous:  Snohomish, King, and Pierce.  Spokane County, the fourth,
does not join any of the other three counties.
2The project also included a 1.6 mile light rail line in downtown Tacoma.
That line is essentially complete, and no issues regarding it are
encompassed in this case.
3Sound Transit also sought a federal grant as an additional source of
revenue.
4The voting public included those voters who reside within the boundaries
of the Sound Transit district.
5The voters' pamphlet provided to Snohomish County voters contained a
statement that "{t}he complete text of this measure may be reviewed at the
Auditor's Office."  CP at 60.  In King County, the voters' pamphlet
included a statement that "{t}he complete text of this measure may be
reviewed at the Division of Records and Elections," at the bottom of the
page.  CP at 668.  The record we have been furnished does not contain the
pertinent language from the Pierce County voters' pamphlet.
6The percentage of votes in favor of the proposition was 56.45%.  The votes
against the measure totaled 406,238.  The "yes" votes totaled 526,671.
7In January 2001, Sound Transit found that the following unforeseen
conditions and changed circumstances had occurred: "a different location
and design for the light rail guideway segment and airport station in order
to better serve a newly planned airport terminal; the addition of tunnel
and station shell under Beacon Hill; the discovery of unstable soils
beneath Portage Bay and in the vicinity of a number of the proposed
underground stations; constraints based on more complete engineering and
construction design information; increased right-of-way costs and
construction costs; and increased environmental mitigation costs to address
such issues as noise, vibration, endangered species protection, and traffic
and safety impacts associated with construction in a densely populated
urban environment."  Decl. of Joni Earl, Ex. I at 2.
8Inconsistently, Justice Sanders's dissent would hold that Resolution 75
was not the legislation voted on because its text was not set forth in the
voters' pamphlet, but it would hold that the eight-page summary pamphlet
was the legislation voted on even though the text of the summary pamphlet
was not published in the voters' pamphlet either.  Dissent of Sanders, J.,
at 2; compare CP at 297-304 (summary pamphlet) with CP at 306-08 (voters'
pamphlet).
9The process for challenging a local voters' pamphlet is determined by the
appropriate county.  RCW 29.81A.030.  RCW 29.04.030 does, however, require
that all challenges alleging an error in the certification of an election
must be brought within 10 days of the election's certification.  Therefore,
a challenge to a local voters' pamphlet must be brought within 10 days of
the election, if not sooner.  Here, Sane Transit waited over five years
after the election to bring this action.
10Justice Sanders's dissent disagrees and would have this court cobble
together enabling legislation based only on the language used in the eight-
page summary pamphlet.  Resp't's Br. at 29; Dissent of Sanders, J., at 2.
The dissent does not explain how the summary pamphlet contains sufficient
details to be enabling legislation.
11Justice Sanders's dissent also contends that it is "{n}onsense" to hold
that Resolution 75 is, in its entirety, the enabling legislation because
section 6 requires the director to submit proposition 1, as listed in
Resolution 75, section 7, to the voters.  Dissent of Sanders, J., at 21.
Thus, it suggests including section 6 and 7 in the enabling legislation
"would mean the voters elected to submit an approved measure to themselves
for approval."  Id.  Construing Resolution 75 against Sound Transit, as the
dissent contends we must, we agree that it was unartfully drafted.  The
dissent's point, though, is insignificant.  These two sections merely
explain how the director is to seek voter approval for the other provisions
of Resolution 75, and therefore, sections 6 and 7 are inoperative now and
were inoperative when Resolution 75 was voted on.
12Sound Transit indicated its intent to construct the 14-mile light rail
line beginning in 2003 and complete construction in 2009.  It also
committed to substantially constructing the entire 21-mile line.  Should
this additional construction be undertaken, it will likely be necessary for
Sound Transit to extend the construction period even further.
13Section 5 of Resolution 75 includes the only reference to a 10-year
construction period.  It is stated, however, in the context of the agency's
plan to maintain a citizen's oversight committee to review the agency's
annual performance audit, financial plan, and to report and make
recommendations to the Sound Transit Board.
14RCW 81.104.100(2)(d) states:
(2) High capacity transportation system planning is the detailed evaluation
of a range of high capacity transportation system options, including: Do
nothing, low capital, and ranges of higher capital facilities. To the
extent possible this evaluation shall take into account the urban mass
transportation administration's requirements . . . .
High capacity transportation system planning shall proceed as follows:
. . .  .
(d) The system plan submitted to the voters pursuant to RCW 81.104.140
shall address, but is not limited to the following issues:
(i) Identification of level and types of high capacity transportation
services to be provided;
(ii) A plan of high occupancy vehicle lanes to be constructed;
(iii) Identification of route alignments and station locations with
sufficient specificity to permit calculation of costs, ridership, and
system impacts;
(iv) Performance characteristics of technologies in the system plan;
(v) Patronage forecasts;
(vi) A financing plan describing: Phasing of investments; capital and
operating costs and expected revenues; cost-effectiveness represented by a
total cost per system rider and new rider estimate; estimated ridership and
the cost of service for each individual high capacity line; and
identification of the operating revenue to operating expense ratio.
The financing plan shall specifically differentiate the proposed use of
funds between high capacity transportation facilities and services, and
high occupancy vehicle facilities;
(vii) Description of the relationship between the high capacity
transportation system plan and adopted land use plans;
(viii) An assessment of social, economic, and environmental impacts; and
(ix) Mobility characteristics of the system presented, including but not
limited to: Qualitative description of system/service philosophy and
impacts; qualitative system reliability; travel time and number of
transfers between selected residential, employment, and activity centers;
and system and activity center mode splits.
15RCW 81.104.140(7) states, "Dedicated high capacity transportation funding
sources authorized in RCW 81.104.150, 81.104.160, and 81.104.170 shall be
subject to voter approval by a simple majority.  A single ballot
proposition may seek approval for one or more of the authorized taxing
sources.  The ballot title shall reference the {summary brochure sent to
voters which describes the systems plan and the financing plan set forth in
RCW 81.104.100}."
16Sane Transit also relies on Hughbanks v. Port of Seattle, 193 Wash. 498,
76 P.2d 603 (1938), and Bremerton Municipal League v. City of Bremerton, 13
Wn.2d 238, 124 P.2d 798 (1942).  In Hughbanks the court prevented
construction of port projects under a voter approved plan which allowed any
conceivable improvement without further consideration by the voters.  In
this case, Sound Transit is restricted to the specific detailed plan set
forth in Resolution 75 and Sound Move, and the agency may not deviate by
constructing any improvement outside the scope of the approved plan.  In
Bremerton Municipal League, changed circumstances undermined the voters'
consent to a city project.  In this case, Sound Transit is limited to the
actions it may take in changed circumstances, and those actions, including
scaling back the project, were approved by the voters when they adopted
Resolution 75.  These cases, therefore, are distinguishable and do not
support Sane Transit's argument.