Washington State Lawsuit Challenges Special Assessment as an Unconstitutional Tax

On January 13, the Evergreen Freedom Foundation presented oral argument before the Washington Supreme Court as amicus curiae (“Friend of the Court”) in the case of Cary v. Mason County, No. 83937-9 (2011). EFF is challenging the constitutionality of a special assessment imposed on non-forested land in Mason County, Washington, calling it an unconstitutionally enacted tax disguised as a special assessment.

The Washington Constitution and prior legislation place strict limits on enacting tax increases and new taxes. Properly defined, taxes charges for general services, while fees are charges paid by users to cover costs of a particularized service delivered to them. Special assessments are even more narrowly focused; for example, land parcels receiving special benefits from public sewage installations may be assessed additionally for an amount commensurate to the value of sewage benefits conferred.

The regulatory fee/assessment mechanism is prone to abuse. EFF argues that the Mason County conservation district special assessment is a tax. While special assessments must, according to a past Washington Supreme Court case, “confer a special benefit on the property sought to be specially charged with its creation and maintenance, over and above that conferred generally upon property within the municipality,” funds are being directed to general purposes for all Mason County residents’ benefit.

A ruling against Mason County in this case will discourage lawmakers from engaging in political semantics to enact “stealth taxes” disguised as fees and assessments.

Read the Evergreen Freedom Foundation’s brief amicus curiae here.

Read more about tax/fee issues here.