Lincoln County Commissioner Scott Hutsell says he would likely support a lawsuit against the State of Washington over unfunded mandates to counties. He spoke on TVW's ''Inside Olympia'' program. TVW

Frustrated And Broke, Washington Counties Consider Suing State

By Austin Jenkins April 5, 2018

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After years of pleading with the state Legislature for more state funding, Washington’s 39 counties could decide this year whether to file a lawsuit against the state over unfunded mandates.

“We’re managing on the edge of risk,” said Eric Johnson, executive director of the Washington Association of Counties, in an interview Thursday on TVW’s “Inside Olympia” program. “I think [the counties] feel backed into a corner with no other option at this point.”

Washington counties trace their budget woes to 2001 and passage of Initiative 747, sponsored by anti-tax activist Tim Eyman. It placed a 1 percent cap on property tax growth each year. The Washington Supreme Court later ruled the cap unconstitutional, but the Legislature re-imposed it in 2007 during a special session called by then-Gov. Christine Gregoire, a Democrat.

Since then, county officials say lawmakers have ignored their pleas to replace the one percent cap with one tied to inflation plus population growth. At the same time they complain they’ve been saddled with unfunded and underfunded mandates from the Legislature that have compounded their budget problems.

Specifically, the counties point to costs associated with paying for public defenders, public health and elections. Frustration mounted last year when the Legislature required counties to deploy more ballot drop boxes without providing the money to purchase and install them or hire the election workers to collect the ballots from the new boxes—a particular burden in sprawling rural counties.

“It was really a slap in the face and I think that’s what really got our members very motivated,” Johnson said.

This year, the Legislature passed several other bills with implications for county coffers, including a measure to allow for same-day voter registration. That prompted the Association of Counties to fire off a series of Twitter messages with the hashtag “unfunded mandates” on the last day of the 2018 Legislative session.

Among the tweets was one that read, “[the Legislature] continues to fail to pay for the true cost of delivering effective and adequate legal representation in all 39 counties.”

The counties association says Washington ranks near the bottom nationally in terms of state funding for indigent defense. However, the state does pay for the full cost for appellate level public defense.

One place that’s struggled to fund basic services is rural Lincoln County west of Spokane with a population of about 10,000. County Commissioner Scott Hutsell said his county has been borrowing from the roads fund to pay for sheriff’s deputies. Even then it’s hard to keep a deputy on the clock, around the clock.

“In the middle of the night, we’ve got our dispatch and corrections people up there, one running 911 and then the jail and that’s who we have,” Hutsell said on “Inside Olympia.”

According to the Washington State Association of Counties, 13 Washington counties don’t have 24-hour police coverage.

Hutsell said that while the counties are “tip-toeing” into litigation, he’s come to believe a lawsuit is likely necessary to get lawmakers to address the issue of county funding.

“The Legislature really reacts to emergencies and … litigation,” Hustsell said, giving the example of the McCleary lawsuit which—after several years—galvanized lawmakers to address school funding. “We need to get their attention.”

But at least one state lawmaker hopes the counties reconsider whether to sue.

“I personally don’t think that it’s super productive for governments to start suing each other,” said Democratic state Sen. Jamie Pedersen. “But I hear their frustration.”

Pederson, who serves on the Ways and Means Committee, said he agrees the one percent cap on property taxes is a “noose” around counties. This year he sponsored legislation to adopt an inflation plus population growth cap, but it didn’t pass.

“There just wasn’t oxygen for having that structural conversation this year,” Pedersen said, noting the Legislature was still dealing with the McCleary school funding case. “I think there’s a reasonable chance that we will do something more about it next session.”

But Pedersen also pushed back on the idea that the Legislature hasn’t provided counties a helping hand.

“I’m not unsympathetic, but I think the reality is a bit more complicated,” Pedersen said.

For instance, he noted lawmakers recently covered the cost of a Washington Supreme Court ruling that requires legal representation for children in state dependency cases.

“That’s been an eight-figure investment by the Legislature to give money to counties,” Pedersen said.

Washington counties do have the authority to impose special sales tax assessments for such things as mental health and public safety programs. Counties can also ask voters for approval to hike the property tax above the 1 percent cap.