Gerberding v. MunroGerberding v. Munro
We are asked in this original action for a writ of mandamus to evaluate the constitutionality of those portions of Initiative 573 (the Term Limits Law) effectively placing term limits on certain state constitutional officers. Initiative 573 prevents individuals who have held state legislative seats or certain state constitutional offices1
ISSUES
1. Are the provisions of Initiative 573 pertaining to state constitutional officers severable from the provisions pertaining to federal legislators which have been found unconstitutional by federal courts?
2. Do the restrictions on declarations of candidacy and appearance on the ballot for certain candidates with prior office holding experience set forth in Initiative 573 constitute qualifications for state constitutional offices?
3. May qualifications for state constitutional officers beyond those set forth in the Washington Constitution be added by statute?
4. Does Initiative 573 amend the Washington Constitution?
FACTS
In 1992, Washington voters approved Initiative 573, the Term Limits Law, by a 52 percent majority. That initiative restricted access to the ballot for incumbent state and federal office holders. Section 1 of Initiative 573 sets forth the perceptions upon which enactment of the initiative was based:2
(1) The people will best be served by citizen legislators who are subject to a reasonable degree of rotation in office;
(2) Entrenched incumbents have become indifferent to the conditions and concerns of the people;
(3) Entrenched incumbents have an inordinate advantage in elections because of their control of campaign finance laws and gerrymandering of electoral districts;
(4) Entrenched incumbency has discouraged qualified citizens from seeking public office;
(5) Entrenched incumbents have become preoccupied with their own reelection and devote more effort to campaigning than to making legislative decisions for the benefit of the people;
(6) Entrenched incumbents have become closely aligned with special interest groups who provide contributions and support for their reelection campaigns, give entrenched incumbents special favors, and lobby office holders for special interest legislation to the detriment of the people of this state, and may create corruption or the appearance of corruption of the legislative system;
(7) The people of Washington have a compelling interest in preventing the self-perpetuating monopoly of elective office by a dynastic ruling class.
....
Laws of 1993, ch. 1, § 1. This preamble to Initiative 573 strongly implies its purpose is to make incumbents ineligible for specified state constitutional offices. See
Under the initiative, persons who have served for 8 or more of the last 14 years (measured from the end of current term of office) for governor or lieutenant governor may not file a declaration of candidacy or appear on the ballot for such offices.
Initiative 573 permits the people to write in the name of a candidate, notwithstanding the restrictions it establishes.
Upon its enactment, Initiative 573 was challenged in federal court with respect to its effect on federal officers. Sections 4, 5, and 8 relating to United States senators and representatives were invalidated by the federal courts. See Thorsted v. Gregoire, 841 F.Supp. 1068 (W.D.Wash.1994), aff‘d sub nom. Thorsted v. Munro, 75 F.3d 454 (9th Cir.1996). State constitutional officers were not at issue in the federal litigation.
The present original action was filed on March 21, 1997. The petitioners include voters, Common Cause of Washington, the Association of Washington Cities, and incumbent legislators. The respondents are Ralph Munro, the secretary of state, in his capacity as the state‘s chief elections officer,
ANALYSIS
In addressing an original action, we are guided by the principles of
The Washington Constitution confers original jurisdiction upon this Court in “mandamus as to all state officers.”
In this case, if we find Initiative 573 unconstitutional, mandamus will properly lie as to the Secretary of State. The Secretary is the chief elections officer for the state.
Turning to the arguments raised by the parties in this case, petitioners assert Initiative 573 is unconstitutional, offering three arguments: (1) the term limit provisions for state constitutional officers cannot be severed from the unconstitutional federal legislator provisions; (2) Initiative 573 impermissibly adds to the exclusive list of qualifications contained in the Washington Constitution, which can only be altered by constitutional amendment; (3) Initiative 573 violates petitioners’ rights of expression, suffrage, free association, and equal treatment under the Washington and United States Constitutions. Respondents assert the provisions of Initiative 573 at issue here are constitutionally valid. Intervenors and PLF contend Initiative 573 should be sustained on policy grounds.
In our analysis of the provisions of Initiative 573 we are guided by general principles for evaluating its constitutionality. First, the statute is presumed constitutional and parties challenging its constitutionality must demonstrate its unconstitutionality beyond a reasonable doubt. City of Seattle v. Montana, 129 Wash.2d 583, 589, 919 P.2d 1218 (1996); Erickson & Assocs., Inc. v. McLerran, 123 Wash.2d 864, 869, 872 P.2d 1090 (1994); State v. Brayman, 110 Wash.2d 183, 193, 751 P.2d 294 (1988). Second, while initiative measures are reflective of the reserved power of the people to legislate, Save Our State Park v. Hordyk, 71 Wash.App. 84, 89-90, 856 P.2d 734 (1993), the people in their legislative capacity remain subject to the mandates of the Constitution. Culliton v. Chase, 174 Wash. 363, 373-74, 25 P.2d 81 (1933). Finally, the Washington Constitution is a restriction on legislative power rather than a grant of powers. Moses Lake Sch. Dist. No. 161 v. Big Bend Community College, 81 Wash.2d 551, 555, 503 P.2d 86 (1972), appeal dismissed, 412 U.S. 934, 93 S.Ct. 2776, 37 L.Ed.2d 393 (1973); Fain v. Chapman, 89 Wash.2d 48, 53, 569 P.2d 1135 (1977).
A. Severability
The first issue advanced by petitioners is that because the provisions of Initiative 573 pertaining to federal legislators were found unconstitutional in Thorsted, 841 F.Supp. 1068, the provisions pertaining to state constitutional officers fail as well because they cannot be severed from the unconstitutional portions of the measure.
The basic test for severability of constitutional and unconstitutional provisions of legislation is set forth in Hall by Hall v. Niemer, 97 Wash.2d 574, 582, 649 P.2d 98 (1982) (quoting State ex rel. King County v. State Tax Comm‘n, 174 Wash. 336, 339-40, 24 P.2d 1094 (1933)):
whether the constitutional and unconstitutional provisions are so connected ... that it could not be believed that the legislature would have passed one without the other; or where the part eliminated is so intimately connected with the balance of the act as to make it useless to accomplish the purposes of the legislature.
Accord Leonard v. City of Spokane, 127 Wash.2d 194, 201, 897 P.2d 358 (1995).
As to the second requirement, petitioners assert the elimination of the unconstitutional portions of Initiative 573 pertaining to federal legislators so destroys the act as to render it incapable of accomplishing its intended purpose. They note the frequent references in the 1992 Voters’ Pamphlet to “national issues” as to the intent of Initiative 573, claiming the term limits for federal legislators were essential to its enactment by the people. The 1992 Voters’ Pamphlet refers to the national debt and tax burden, the S & L bailout and congressional banking and postal scandals. However, even a cursory look at the pamphlet reveals many references to state offices, referring to governor, lieutenant governor and state senators and representatives. Although the pamphlet notes several national issues, its lamentations regarding the evils of incumbency and elimination of “deadwood” can fairly be read as applying equally to the state constitutional officers addressed in the initiative. Thus, even without the portions relating to national office, as Initiative 573 addresses perceived evils of incumbency in state offices, it has not been rendered “useless,” as required by the test for severability. Nor can it fairly be said that the state office provisions would not have been independently supported by the initiative proponents and voters seeking to address the perceived evils of incumbency at the local level. The second prong of the severability test is also met.
The provisions of Initiative 573 addressing state constitutional officers are severable, and are not unconstitutional per se because the provisions regarding federal legislators have been found by federal courts to violate the federal constitution.
B. Qualifications for State Constitutional Officers
The next question before us is whether the provisions of Initiative 573 are qualifications for state constitutional officers and whether the qualifications, set in the Washington Constitution for the officers in question, may be supplemented by statute.
1. Term Limits Are Qualifications
The threshold question we must answer is whether the restrictions set forth in Initiative 573 for certain candidates constitute “qualifications” for office. In the traditional sense, qualifications for office are attributes which must be met before a person can be a candidate for office or officeholder such as age, residence, or citizenship. The dictionary definition is “... [a] condition or circumstance which must be satisfied.” Webster‘s II New Riverside University Dictionary 961 (1984). As the term itself is undefined in the Constitution, we apply its ordinary meaning. See Boeing Co. v. Aetna Cas. & Sur. Co., 113 Wash.2d 869, 877, 784 P.2d 507 (1990) (undefined terms are given their “plain, ordinary and popular” meaning; and courts look to standard English language dictionaries to determine the ordinary meaning of such terms).
Initiative 573, however, frames the limitation in a negative sense, barring certain people from being candidates. A “negative” framing of the attribute does not preclude it from being a qualification. In Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), the United States Supreme Court addressed
In State ex rel. Chandler v. Howell, 104 Wash. 99, 175 P. 569 (1918), we held the Washington Constitution‘s prohibition on judges seeking other offices during the term for which they were elected was a qualification that could not be added to those set for federal legislative office under the United States Constitution.
Moreover, under
While some proponents of term limits of the sort established by Initiative 573 have contended the restrictions on incumbents relate to ballot access, such restrictions have been interpreted to be qualifications for office. The United States Supreme Court in United States Term Limits, Inc. v. Thornton, 514 U.S. 779, 829-39, 115 S.Ct. 1842, 1867-71, 131 L.Ed.2d 881 (1995), rejected the view that an Arkansas constitutional amendment imposing term limits was a valid ballot access measure, and held term limits constituted a qualification for federal legislative office; such addition to the constitutional qualifications for federal office was invalid. See also Thorsted v. Gregoire, 841 F.Supp. 1068, 1081 (W.D.Wash.1994) (Initiative 573 imposes a new qualification for office: nonincumbency beyond the specified periods), aff‘d sub nom. Thorsted v. Munro, 75 F.3d 454 (9th Cir.1996); Alaskans for Legislative Reform v. State, 887 P.2d 960, 966 (Alaska 1994) (rejecting Alaska‘s term limits’ initiative because it imposed “`qualifications’ as that term has been used by constitutional delegates, political thinkers, legal scholars, and courts“).
Likewise in 1895, we interpreted the term limit provision of former article XI, section 77 as a qualification for county treasurers. In Koontz v. Kurtzman, 12 Wash. 59, 40 P. 622 (1895), an unsuccessful candidate for county treasurer challenged the election asserting the person elected was ineligible to hold office under former
We are of the opinion that appellant was not disqualified from holding the second term under [article XI, section 7], in consequence of having served for a part of a term under the appointment by the commissioners. The constitution does not say that no person shall hold a county office for more than four years, but says that he shall not hold it for more than two terms in succession. It interposes a term limit but not a time limit. The term of office is fixed by law and is two years, and there may be several different incumbents during a single term.
Koontz, 12 Wash. at 60, 40 P. 622 (emphasis added).
Counsel for Respondents Munro and Gregoire effectively conceded the restrictions of Initiative 573 are qualifications in oral argument. As the intent section of the measure proclaims, and the effect of the measure commands, nonincumbency as described in Initiative 573 becomes a qualification for state constitutional officers, and we so hold.
2. Qualifications for State Constitutional Officers Are Exclusive
Having determined Initiative 573 establishes nonincumbency as a new qualification for state constitutional officers we next turn to the question of whether qualifications can be added by statute to the qualifications set forth in the constitution for such officers. Petitioners contend the qualifications mandated by Initiative 573 unconstitutionally add to the exclusive qualifications for state constitutional
In determining whether term limits constitute impermissible qualifications beyond those expressed in our state Constitution, it is important to re-visit fundamental principles regarding qualifications for state constitutional offices. Our cases have expressed a strong presumption in favor of eligibility for office. In State v. Schragg, 158 Wash. 74, 78, 291 P. 321 (1930), we stated:
Since the right to participate in the government is the common right of all, it is the unqualified right of any eligible person within the state to aspire to any of these offices, and equally the unqualified right of the people of the state to choose from among those aspiring the persons who shall hold such offices. It must follow from these considerations that eligibility to an office in the state is to be presumed rather than to be denied, and must further follow that any doubt as to the eligibility of any person to hold an office must be resolved against the doubt.
Id. at 78, 291 P. 321. Accord State ex rel. O‘Connell v. Dubuque, 68 Wash.2d 553, 566, 413 P.2d 972 (1966) (“[a] strong public policy exists in favor of eligibility for public office, and the constitution, where the language and context allows, should be construed so as to preserve this eligibility“).
The Washington Constitution sets forth qualifications for state legislative offices:
Qualifications of Legislators. No person shall be eligible to the legislature who shall not be a citizen of the United States and a qualified voter in the district for which he is chosen.
Qualifications, Compensation, Offices Which May Be Abolished. No person, except a citizen of the United States and a qualified elector of this state, shall be eligible to hold any state office....
The constitutional provisions establishing qualifications for state constitutional officers were the subject of intense debate in the 1889 Constitutional Convention. The original draft of article III, section 25, provided a general residency in Washington requirement of two years in addition to other qualifications. For the governor and lieutenant governor, a minimum age of 35 years and a five-year Washington residency requirement were established. This draft of the section was ultimately rejected. See The Journal of the Washington State Constitutional Convention 1889, at 589-91 (Beverly Paulik Rosenow ed., 1962).
Term limits were also debated, and in some cases applied, when qualifications for certain state offices were being determined. As originally adopted in 1889,
No person, except a citizen of the United States and a qualified elector of this state shall be eligible to hold any state office, and the State Treasurer shall be ineligible for the term succeeding that for which he was elected ...
(Emphasis added.) Journal at 589-90.8 Similarly, former
No county officer shall be eligible to hold his office more than two terms in succession.
Journal at 720.9
Delegates at the 1889 Constitutional Convention considered but rejected term limits for other offices. Journal at 589-91. When article III, section 25, was being considered in July of 1889, delegate J.Z. Moore moved to
A similar process took place at the 1889 Convention in addressing article II, section 7. The actual qualifications for state legislators came only after several motions to change the section by convention delegates. The initial draft of that section required a legislative candidate to be a citizen of the United States, a resident of the state for two years, and a qualified voter of the district where she or he is chosen; provided, that at the first election every citizen of the United States who was a qualified voter when elected was eligible. A motion by delegate Griffiths to strike the two-year residence qualification failed. A subsequent motion by delegate T.M. Reed to strike language drawing a distinction between the eligibility of candidates at the first and subsequent elections carried. A motion to strike the entire section by delegate P.C. Sullivan lost, and a final motion by delegate Dunbar to “amend so that a member of Legislature must be a citizen of the United States and an elector of the state, leaving out the two-year requirement of residence” carried. Journal at 240, 527-28.
Washington‘s constitutional framers believed qualifications for state constitutional officers were a matter of constitutional, not statutory, concern. They debated citizenship, residency in the state, age, status as qualified elector, and term limits in ultimately arriving at the appropriate qualifications for state constitutional officers.
Additionally, the framers did not confer authority on the Legislature to prescribe additional qualifications for such officers. Various constitutional provisions demonstrate the framers knew how to grant, and expressly did grant the Legislature lawmaking authority pertaining to certain constitutional offices. See, e.g.,
In addition to the text of the Constitution itself and our constitutional history, our case law indicates the qualifications sections of the Washington Constitution are exclusive. In In re Bartz, 47 Wash.2d 161, 287 P.2d 119 (1955), we stated the general rule with respect to constitutional qualifications for office:
where the constitution has set forth qualifications for an office, either general or specific, in the absence of an express grant of power to the legislature, there is an implied prohibition against the imposition of additional qualifications by the legislature.
Bartz, 47 Wash.2d at 164, 287 P.2d 119.
In Bartz, we upheld a statute requiring justices of the peace in cities of over 5,000 population to be attorneys. We noted the specific constitutional qualifications for executive and legislative office and held where the Constitution failed to provide qualifications regarding justices of the peace, the legislature could appropriately fill the vacuum because enactment of such laws would not conflict with any express or implied constitutional provision. We indicated this holding was consistent with the concept of the Washington Constitution as a restriction on legislative powers, and followed from the authority expressly granted the Legislature by
Respondents assert the “better-reasoned” decisions of other state courts support the conclusion the qualifications for state constitutional officers listed in the Washington Constitution are not exclusive. Relying on annotations appearing in Legislative Power to Prescribe Qualifications for or Conditions of Eligibility to Constitutional Office, 34 A.L.R.2d 155, 167 (1954), they argue constitutional provisions phrased positively are exclusive lists of qualifications, while those phrased negatively, like Washington‘s, are minimum requirements. Whether phrased negatively or positively, such requirements are qualifications. The critical issue is whether such qualifications are exclusive.
Respondents also argue “Courts interpreting provisions constructed similarly to Washington‘s have often concluded that additional qualifications can be added by statute.” Br. of Resp‘t at 18-19. They cite four cases from the annotations, Boughton v. Price, 70 Idaho 243, 215 P.2d 286 (1950); Darrow v. People, 8 Colo. 417, 8 P. 661 (1885); State v. Johnson, 33 Del. 334, 138 A. 280 (Super.Ct.1927); and State ex rel. Thompson v. McAllister, 38 W.Va. 485, 18 S.E. 770 (1893), while noting “[i]n candor to the tribunal, however, the annotation also notes a number of cases from other states for the opposite proposition.” Br. of Resp‘t at 19 n. 20. Indeed, we specifically noted the Boughton case and rejected its approach in Bartz. See
It is generally considered that the legislature has full control over offices created by its enactment of a statute, whereas its power over constitutional offices is limited; and that it cannot abolish a constitutional office, nor change such an office, except as expressly permitted by the constitution.
34 A.L.R.2d at 168 (citation and footnote omitted). Indeed, although respondents cite the Johnson case, upholding the Delaware Legislature‘s addition of qualifications to the statutory office of levy court commissioner, they overlook the annotation‘s discussion of the later case of Buckingham v. State ex rel. Killoran, 42 Del. 405, 35 A.2d 903 (1944), in which the Delaware court rejected legislatively-imposed additional qualifications on constitutionally created judicial offices stating:
We are convinced from all the authorities that the Legislative branch of government has no authority to add further qualifications in connection with a constitutional judicial officer where the qualifications are provided by the Constitution.
34 A.L.R.2d at 188 (quoting Buckingham, 42 Del. at 415, 35 A.2d at 907). This latter pronouncement by the Delaware court is in accord with our approach in Bartz.
Intervenors argue the qualifications listed in the Constitution are minimums which may be added to by statute, listing several statutory examples. These statutes do not support their position.
Intervenors also claim that judges in Washington are disqualified from office at age 75, citing
The general rule in Bartz remains the applicable principle as to statutory additions to qualifications for constitutional offices. Where the framers established qualifications for office, did not confer express authority upon the Legislature to add to such qualifications by statute, and specifically debated term limits, rejecting such qualifications for the officers in question, we must conclude that article II, section 7 and article III, section 25 are exclusive. Washington‘s constitutional framers evidenced an intent to allow broad eligibility for public office in setting the qualifications for state constitutional officers. We believe it the wiser course to adopt the general rule expressed in Bartz and not allow the qualifications for state constitutional officers to be easily altered by the particular politics of the moment.
C. Initiative 573 Did Not Amend the Constitution
The intervenors claim the Washington Constitution can be amended by initiative. They contend “[e]ven if the Legislature lacks authority to qualify eligibility by term limits, the citizens have such authority through the initiative process.” Intervenors Br. at 39. In this case, by its terms, Initiative 573 is a statutory enactment. It was not designed to amend either article II, section 7 or article III, section 25 of our Constitution. Initiative 573 did not and cannot add qualifications to those prescribed in the Washington Constitution for state officers.11
CONCLUSION12
Recognizing its political significance, we are not swayed in our analysis of Initiative 573 by the policy merits or demerits of term limits for officeholders. The wisdom of term limits is ultimately a policy decision for the voters of this state, through the process for constitutional amendment articulated in
Initiative 573 improperly attempts to add qualifications to constitutional offices by statute. A statute, whether adopted by the Legislature or the people, may not add qualifications
We hereby order that a writ of mandamus be issued to the Secretary of State, requiring him to accept declarations of candidacy and nomination papers and certify names of candidates for placement on the ballot, in accordance with existing election laws, notwithstanding Initiative 573.
DURHAM, C.J., and DOLLIVER, GUY, JOHNSON and MADSEN, JJ., concur.
SANDERS, Justice, dissenting.
If the constitution, by its language, purported to exclusively set the qualifications for public office I would yield to that higher law; however, it does not. This court is not above the very constitution which created it, and must always heed its voice. I dissent because the constitution requires no less.
The Constitutional Text
To test the majority‘s claim that the people may not impose limits upon the terms of their elected public servants we must repair to the words of the constitutional text as “[a]ppropriate constitutional analysis begins with the text and, for most purposes, should end there as well.” Malyon v. Pierce County, 131 Wash.2d 779, 799, 935 P.2d 1272 (1997).1 As Patrick Henry similarly expressed early in our nation‘s history, “A Constitution, sir, ought to be, like a beacon, held up to the public eye, so as to be understood by every man.” Jean Edward Smith, John Marshall: Definer of a Nation 137 (1st ed.1996) (quoting letter dated May 7, 1784, from John Marshall to John Ambler in 1 Marshall Papers 122).
These clauses were worded negatively to prohibit anyone from holding office who does not possess the constitutionally minimum qualifications. Washington constitution article II, section 7, addressing state legislators, provides:
No person shall be eligible to the legislature who shall not be a citizen of the United States and a qualified voter in the district for which he is chosen.
And Washington constitution article III, section 25, addressing all other state officers, provides:
No person, except a citizen of the United States and a qualified elector of this state, shall be eligible to hold any state office.
The majority errs when it concludes negative constitutional language which sets a minimum exclusively sets a maximum as well.2 To set a floor and ceiling, simultaneously, more appropriate language would state ”all persons shall be eligible for office who are citizens and qualified voters.” But it doesn‘t.3
But this court disagreed, holding the negatively worded language meant what it said by setting minimum qualifications and nothing more. Holding the city could add qualifications consistent with the state statute, the court held, “Section 9929 merely provides that no person shall be competent to hold elective office unless he possesses certain qualifications. It does not say that no other requirements shall be prescribed, nor does it say that the political subdivision therein named may not impose restrictions not inconsistent with the statute.” Id. at 624, 33 P.2d 94
33 P.2d 94.Griffiths and today‘s majority read nearly identically worded qualification clauses to an opposite result. As the constitutional language is materially identical to the state statute (no person shall hold office unless... ), the same outcome is mandated: Such negatively worded qualification clauses set the minimum qualifications but do not limit legislative power to add further qualifications above that minimum.
Our starting point is the presumption that the State has the legislative power to act in any given field unless affirmatively restrained by the constitution. State ex rel. Distilled Spirits Institute, Inc. v. Kinnear, 80 Wash.2d 175, 181, 492 P.2d 1012 (1972) (“[T]he legislative power is absolute unless expressly or by fair implication limited in the constitution.“) (citing State v. Fair, 35 Wash. 127, 76 P. 731 (1904)).4
If our constitution does not affirmatively limit the legislature‘s, or the people‘s, ability to set reasonable qualifications for office, the legislature‘s authority to do so is simply not so limited. Such was the generally recognized rule of law at the time of statehood: “where the constitution has made some provision [for qualifications for office], but not exclusive ones, the legislature may add such others as are reasonable and proper.” Floyd R. Mechem, A Treatise on the Law of Public Offices and Officers § 66 (1890). Cf. State ex rel. Buttz v. Marion Circuit Court, 225 Ind. 7, 72 N.E.2d 225, 230, 170 A.L.R. 187 (1947) (“It has been held universally that in the absence of constitutional restrictions there may be qualifications imposed by the legislature for holding public office.“) (citing Floyd R. Mechem, supra, §§ 64-68 (1890)). Many of our framers were lawyers and appreciated the nuances of language.5 In matters of constitutional construction, courts prefer a construction
which will render every word operative, rather than one which may make some words idle and nugatory.
This rule is applicable with special force to written constitutions, in which the people will be presumed to have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, leaving as little as possible to implication.
Thomas M. Cooley, A Treatise on the Constitutional Limitations 72 (6th ed. 1890) (footnotes omitted).
This analysis could and should end here, with the conclusion that our negatively worded qualification clauses6 do not forbid legislative imposition of further qualifications, including term limits. We know that because the text says that.7
Yet the majority ignores the plain meaning of the constitutional text embarking instead upon a journey back in time to the constitutional convention in a vain effort to give the unambiguous words of our constitution another meaning. Majority at 1373. While such is ultimately unproductive,8 notwithstanding, I posit, our constitutional history does nothing to alter the plain meaning of the constitutional clauses before us. This is necessarily so because it is not the subjective intent of our framers which matters but the plain meaning of the words ratified by the public in 1889. State v. Lister, 91 Wash. 9, 156 P. 858 (1916); Malyon v. Pierce County, 131 Wash.2d 779, 799 n. 31, 935 P.2d 1272 (1997); Robert F. Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L.Rev. 491, 510 (1984). The framers proposed, but the public disposed.
Constitutional History
At the time of the constitutional convention in 1889 Washington Territory was governed by the Organic Act. Under the Organic Act the Washington Territorial legislature was directed to set the qualifications for voting and holding office. 10 Stat. ch. 90, p. 172, § 5 (1853). The Organic Act, however, set the minimum qualifications by requiring office holders and voters alike be United States citizens at least 21 years of age. Id. § 5. The Organic Act provided:
the qualifications of voters and of holding office at all subsequent elections shall be such as shall be prescribed by the Legislative Assembly: Provided, That the right of suffrage and of holding office shall be exercised only by citizens of the United States above the age of twenty-one years....
Id. § 5.
Thus, in the beginning, qualifications for voting and office eligibility were treated the same: the minimum was set by the Organic Act, the remainder by the legislature. The new constitution, however, altered the scheme by treating qualifications for voting differently from qualifications for holding office. By unmistakable language voting qualifications were set exclusively; however, the new constitution retained the prior system‘s treatment of qualifications for office by setting constitutional minimums for eligibility, leaving the legislature free reign to set all remaining qualifications.
The voting qualification enshrined in the new constitution affirmatively stated:
All male persons of the age of twenty-one years or over, possessing the following qualifications, shall be entitled to vote at all elections....[9]
Thus,
The qualification clauses for office provides, “No person shall be eligible to the legislature who shall not be a citizen of the United States and a qualified voter in the district for which he is chosen” (
Unfortunately the majority does not grasp the importance of the difference in language used in these parallel settings, purblind asserting the meaning is the same. Thus, the majority violates the cardinal rule of construction which holds, “Where different language is used in the same connection in different parts of a statute, it is presumed that a different meaning was intended.” State v. Roth, 78 Wash.2d 711, 715, 479 P.2d 55 (1971).
Exclusive language was employed in the voter qualification clause, evidencing the qualifications set forth therein were intentionally exclusive; however, negative language was used in the office-holding qualification clause. The difference is obvious. But the majority does not account for it.
Contemporary authorities to our constitutional ratification were well able to discern the difference between negative and exclusive language: “Where the constitution has prescribed the qualifications, the possession of which shall entitle an individual to hold office under the state, it is not within the power of the legislature to change or add to them.... A negative provision, however, as that a person not an elector shall not be appointed or elected to an office in the state, does not preclude the legislature from adding other reasonable and proper requirements.” Floyd R. Mechem, A Treatise on the Law of Public Offices and Officers § 96 (1890). Case law of the time, and thereafter, agreed.
For example, the Ohio high court held in 1876 that negative phraseology in its constitutional qualifications clause did not preclude the legislature from enacting reasonable additional qualifications. State ex rel. Atty. Gen. v. Covington, 29 Ohio St. 102, 117-18 (1876). The negatively worded language there was the same as ours. Id. at 117 (“No person shall be elected or appointed to any office in this state, unless he possesses the qualifications of an elector.“) (quoting
It is apparent that this statute is not in conflict with the terms of this constitutional provision. It does not authorize the appointment of a person who is not an elector. The express provision of the constitution is, that a person not an elector shall not be elected or appointed to any office in this state. Now, unless the clear implication is that every person who has the qualifications of an elector shall be eligible to any office in this state, there is no conflict between the statute and the constitution. I do not believe that such implication arises. .... If the framers of the constitution had intended to take away from the legislature the power to name disqualifications for office, other than the one named in the constitution, it would not have been left to the very doubtful implication which is claimed from the provision under consideration. The power under the general grant being ample and certain, a statute should not be declared void because in conflict with an alleged implication, unless such implication be clear and indubitable.
In 1883 the South Carolina Supreme Court followed that same distinction. State v. Williams, 20 S.C. 12, 17 (1883). After our constitution was adopted, several more courts elaborated. For example, the North Carolina high court interpreted a constitutional clause which stated, ”Every voter in North Carolina, except as in this article disqualified, shall be eligible to office” to be exclusive while observing that if the constitution were worded negatively, as is Washington‘s, then the legislature could add qualifications. State ex rel. Spruill v. Bateman, 162 N.C. 588, 591, 77 S.E. 768 (1913) (quoting
The New Mexico Supreme court followed suit soon thereafter in Gibbany v. Ford, 29 N.M. 621, 225 P. 577, 578 (1924) (interpreting
Drafters of our constitution had every reason to be well aware of the difference between negative and exclusive phraseology. In 1889, when our constitution was drafted, several states had recently included exclusive qualifications for holding office in their constitutions. For example, North Carolina‘s second constitution, written in 1868, included a provision clearly stating that citizenship and voter status shall be the sole requirements for public office and that the legislature cannot add qualifications thereto.
The majority makes much of the framers’ debate on possibly inserting mandatory term limits into the constitution. Majority at 1373-1374. The fact is the convention debated, but decided not to make term limits a constitutional mandate. The resulting constitution suggests the framers thought enough of term limits to discuss them while simultaneously rejecting the proposition that the legislature cannot impose reasonable term limits in the future. The resulting negative language in the qualifications clause perhaps represents a compromise on the term limits debate to leave the legislature free to impose and remove term limits as it
Other History
The Washington legislature has always acted consistent with the view that the negatively worded qualification clauses mean what they say and do not restrain the legislature from adding reasonable qualifications.12 The majority acknowledges one example, the statutory requirement that the attorney general be a qualified practitioner before the supreme court. Majority at 1376 (citing
The attorney general is a constitutional executive officer.
A more probable view is the legislature passed a qualification law contemporaneously with the drafting of the constitution because it viewed the addition of legislative qualifications constitutionally consistent. Cf. Malyon v. Pierce County, 131 Wash.2d 779, 799, 935 P.2d 1272 (1997) (fact that religious societies provided most social services to the public at time of constitutional convention indicates the state establishment clause is not offended by use of volunteer chaplains).13
The practice of legislative additions to qualifications for office has continued without abatement. For example, the code of 1891 reveals a statute declaring various officeholders ineligible to hold the constitutional office of justice of the peace. Hill‘s Gen.Stat. (1891) vol. I, § 303 entitled “Who eligible to office of justice” (“[N]or shall any sheriff, coroner, or clerk of the superior court be eligible to or hold such office.“). See also
The majority, however, ignores the text and history, instead focusing on the dicta appearing in a single case, In re Bartz, 47 Wash.2d 161, 287 P.2d 119 (1955). Majority at 1374. In Bartz the legislature enacted a statute providing no one is eligible to hold the office of justice of the peace except an attorney. Laws of 1951, ch. 156, § 2. Bartz upheld the legislatively added qualification on the ground the legislature had always set such qualifications and because judicial officers were not subject to the executive or legislative qualifications clauses. However, then the court continued to enunciate a seemingly contradictory position that the legislature cannot add to qualifications for constitutional offices. Young v. Konz, 91 Wash.2d 532, 542, 588 P.2d 1360 (1979) characterized the Bartz holding as one upholding “the power of the legislature to prescribe qualifications for judges of justice courts.” That which is beyond, or not necessary to, this holding is dicta.14 Dicta is not controlling authority and need not be followed. State v. Potter, 68 Wash.App. 134, 150 n. 7, 842 P.2d 481 (1992).
By text, precedent, and practice, negatively phrased qualification clauses do not restrict legislative imposition of additional reasonable qualifications for office.
Other Jurisdictions
While the majority strings citations to support its position of exclusivity (Majority at 1375-1376), in truth courts have not been uniform in their treatment of term limits. In fact, legislative term limits are currently the law in some 20 American states whereas only one court has stricken term limits as a violation of a state qualification clause. Such is a far different picture from that which the majority paints.
First, we must distinguish the United States Supreme Court case which struck down state imposed term limits for federal congressional officers. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995). Thornton is a case about federalism and, as such, has very limited applicability to our state law inquiry. Thornton involved an Arkansas state constitutional amendment which purported to impose term limits on Arkansas’ congressional delegation. The divided 5-4 Thornton court held neither Arkansas nor any other state could impose term limits on federal officers, however, not because of the language of the federal qualifications clauses but because the states lack power to alter the qualifications for any federal offices for reasons of federal supremacy.15 The Thornton majority reasoned allowing the states to alter federal qualifications would disrupt the uniform national government.16 The majority also based its holding on the particular intent of the national framers and the peculiar attendant
Turning to term limits imposed upon state officers and judicial treatment thereof, it is interesting to note many states have historically imposed term limits on their governors without constitutional invalidation.18 The controversy over term limits gathered force, however, after the states began to impose limits on legislators in 1990. Currently, 14 states have imposed term limits on state officers by state constitutional amendment, although the relevant constitutions generally allow constitutional amendment directly by the people through initiative without legislative approval. Karen Hansen, Living Within the Limits, in State Legislatures 15 (June 1997).19 No court has stricken term limits in these states20 and, where addressed, term limits have been upheld as valid expressions of popular will.21
In addition to the 14 states just mentioned, six states, including Washington, have imposed term limits by direct legislative enactment.
Massachusetts struck down the popularly enacted term limits on the ground the people lack the power to alter qualifications for state office. League of Women Voters v. Secretary of Com., 425 Mass. 424, 681 N.E.2d 842 (1997). However, the peculiar language of the Massachusetts constitution is exclusive in form. Indeed, the Massachusetts high court relied in part on article 9 of its state constitution in reaching its decision. Id. 681 N.E.2d at 844. That constitutional provision declares constitutional qualifications to be exclusive: “all the inhabitants of this Commonwealth, having such qualifications as they shall establish by their frame of government,[24] have an equal right ... to be elected, for public employments.” Id. at 844 n. 5 (quoting article 9 of the Massachusetts Declaration of Rights).
More on point is the Maine case where the relevant constitutional language is materially
Are Term Limits Consistent with the Spirit of Our Constitution?
While dispositively concluding the letter of the constitution does not prohibit term limits by initiative, I further posit neither is the spirit of our constitution offended by same. The tenor of various clauses such as
If anything the very nature of our constitution is to limit government. To strike term limits because they interfere with our constitutional system is indeed anomalous as term limits are overtly a restraint on career politicians and serve as an indirect further check on the legislative branch.25
By design, Washington‘s legislature has always been a citizen legislature comprised of people wedded to other professions who gather but a short time annually or biannually about the people‘s business. As such these legislators, more than most, are “called for the most part from pursuits of a private nature, continued in appointment for a short time,” and then return to private life. The Federalist No. 62, at 419 (James Madison) (Jacob E. Cooke ed., 1961). Term limits, which ensure our legislators remain citizen legislators,26 not career state employees, are generally consistent with this constitutional framework and specifically consistent with our citizen‘s historically populist mistrust of the legislature.27 That this legacy remains in the minds of our citizens perhaps explains the popular adoption of the act before us today.
Additionally, there is a claim that such term limits infringe on the right to free elections. Such a claim was rejected outright with respect to California‘s absolute prohibition in Bates v. Jones, 131 F.3d 843, 846-47 (9th Cir.1997) (“[T]erm limits on state officeholders is a neutral candidacy qualification, such as age or residence, which the State certainly has the right to impose.“). The free election clause is intended in part to ensure “the door of this part of the Federal Government, is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty
Constitutional Reasonableness of These Term Limits
Concluding term limits are not prohibited by the qualifications clauses or by our constitutional framework, we might further inquire if they are reasonable. Indeed, to be valid, every law must be reasonable in the constitutional sense. Lawton v. Steele, 152 U.S. 133, 137, 14 S.Ct. 499, 501, 38 L.Ed. 385 (1894). Such applies with equal force to legislatively imposed qualifications for office and ballot access measures. Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974). Mechem, supra, § 66 (legislatively imposed qualifications for office must be “reasonable and proper.“); In re Bartz, 47 Wash.2d 161, 168, 287 P.2d 119 (1955) (upholding legislatively imposed qualification that justices of the peace be attorneys because such is “reasonable“); State ex rel. Buttz v. Marion Circuit Court, 225 Ind. 7, 72 N.E.2d 225, 170 A.L.R. 187 (1947) (“The fact, however, that the Legislature may fix qualifications for holding public office ... does not mean that in the fixing of such qualifications ... [they must] not be arbitrary, they must be reasonable and based upon substantial grounds which are natural and inherent in the subject matter of the legislation.“).
The classic three-prong test of reasonableness would ask: (1) do term limits have a valid public purpose, (2) do they use means calculated to achieve that purpose, and (3) are they unduly oppressive upon individuals? Presbytery of Seattle v. King County, 114 Wash.2d 320, 330-31, 787 P.2d 907 (1990) (citing Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385 (1894)), cert. denied, 498 U.S. 911, 111 S.Ct. 284, 112 L.Ed.2d 238 (1990).
Term limits have the valid public purpose of imposing a check on elected officeholders. They are intended to promote access to office by forcing incumbents to step aside to make way for nonincumbents. See Laws of 1993, ch. 1, § 1(7) (Initiative Measure No. 573) (“The people of Washington have a compelling interest in preventing the self-perpetuating monopoly of elective office by a dynastic ruling class.“). Term limits clearly promote this end. Nor are term limits unduly oppressive upon the individual incumbents who are “limited out” since it is a privilege to serve through an office of public trust, not a private right which one can conceivably be denied by an unduly oppressive government. Plaintiffs’ First and Fourteenth Amendments rights are not violated by term limits. Bates v. Jones, 131 F.3d 843, 846-47 (9th Cir.1997).
Nor are Washington‘s term limits absolute. Compare Bates v. Jones (upholding California lifetime term limits ban against constitutional challenge). On the contrary, they merely force incumbents to step aside for a short period. A legislator may serve six years in the state house, eight years in the senate and then after a six year hiatus can serve another straight eight years in the senate.
Today, six votes on this court are the undoing of the 1,119,985 votes that Washingtonians cast at the polls in favor of term limits. In the final analysis term limits must be upheld because the constitution does not prohibit it. I therefore dissent.
ALEXANDER, J., concurs.
Notes
“[t]he legislature does not have the authority to establish qualifications for the office of the state superintendent of public instruction in addition to those found in Article III, § 25, Amendment 31, of the Washington State Constitution.”
See, e.g., 1 Joseph Story, Commentaries on the Constitution of the United States § 451 (Melville M. Bigelow ed., 5th ed. 1891):Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them, the people adopt them, the people must be supposed to read them, with the help of common-sense, and cannot be presumed to admit in them any recondite meaning or any extraordinary gloss.
It is also noteworthy the voters in 1996 rejected Initiative 670 which would have required a notation on the ballot affixed to the name of any candidate who opposed term limits.
Such an exclusive reading of constitutionNo Person shall be a Representative who shall not have attained to the age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.
Perhaps we should refer to them as “disqualification clauses” instead as they really set conditions that disqualify one from office.The same provision, article VI, section 1, currently reads:
Qualifications of Electors. All persons of the age of eighteen years or over who are citizens of the United States and who have lived in the state, county, and precinct thirty days immediately preceding the election at which they offer to vote, except those disqualified by Article VI, section 3 of this Constitution, shall be entitled to vote at all elections.
Constitution article VI, section 3, currently provides:
Who Disqualified. All persons convicted of infamous crime unless restored to their civil rights and all persons while they are judicially declared mentally incompetent are excluded from the elective franchise.
Furthermore, the cases cited by PLF from other jurisdictions are not in conflict with our disposition of this case. See, e.g., Stiles v. Blunt, 912 F.2d 260 (8th Cir.1990), cert. denied, 499 U.S. 919, 111 S.Ct. 1307, 113 L.Ed.2d 241 (1991) (upholding a Missouri constitutional age requirement for the constitutional office of state representative); Zielasko v. Ohio, 873 F.2d 957 (6th Cir.1989) (upholding an Ohio constitutional age requirement for state judicial office). See also Sununu v. Stark, 383 F.Supp. 1287 (D.N.H. 1974), aff‘d, 420 U.S. 958, 95 S.Ct. 1346, 43 L.Ed.2d 435 (1975); Chimento v. Stark, 353 F.Supp. 1211 (D.N.H.), aff‘d, 414 U.S. 802, 94 S.Ct. 125, 38 L.Ed.2d 39 (1973) (upholding New Hampshire‘s constitutionally imposed residency requirement for constitutional offices of state senator and governor, respectively).
The antinepotism requirement cited by PLF is inapposite. It is a Kentucky statutory requirement imposed on the statutorily created Board of Education by the Kentucky General Assembly which has oversight responsibility for education under the Kentucky Constitution. See Chapman v. Gorman, 839 S.W.2d 232, 233-37 (Ky.1992);
In State ex rel. Spruill v. Bateman, 162 N.C. 588, 592, 77 S.E. 768 (1913) the court explained:
The purpose of this peculiar phraseology in the North Carolina Constitution is well known by every one. A newly emancipated element had been admitted to suffrage, and it was rightly anticipated that at some future day there might be a majority in the General Assembly unfavorable to their holding office, so the provision was made that “every voter,” except as disqualified by the Constitution, should be eligible “to office.”