Gerberding v. Munro
| Citation | 949 P.2d 1366,134 Wn.2d 188 |
| Decision Date | 08 January 1998 |
| Docket Number | No. 65059-4,65059-4 |
| Court | United States State Supreme Court of Washington |
| Parties | William GERBERDING; Kemper Freeman, Jr.; Common Cause of Washington; Association of Washington Cities; Paul Sutley; Shirley Doty; Timothy Kaufman-Osborn; Arthur Siegal; Tom Gregory; Ida Ballasiotes; Bob McCaslin; Alex Deccio; Valoria Loveland; Helen Sommers; and Marlin Appelwick, Petitioners, v. Ralph MUNRO, Secretary of State; and Christine O. Gregoire, Attorney General, Respondents, U.S. Term Limits, Inc.; Citizens for Leaders with Ethics and Accountability Now, Inc. (CLEAN), Respondents/Intervenors. |
Perkins, Coie, David Burman, Nancy Day, Seattle, for Petitioners.
Christine Gregoire, Attorney General, James Pharris, Jeffrey Even, Anne Egeler, Assistant Attorneys General, Olympia, Marten & Brown, Stimson Bullitt, Appel & Glueck, William Glueck, Seattle, for Respondents.
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 offices 1 for a prescribed period of time from filing a declaration of candidacy and appearing on the ballot for such offices, although write-in campaigns are permitted. Such restrictions are qualifications beyond those set forth in the Washington Constitution for such offices, and the Legislature or the people acting in their legislative capacity may not add statutory qualifications to those prescribed for state constitutional officers. We find Initiative 573 unconstitutional and issue a writ of mandamus to the secretary of state directing him to accept declarations of candidacy, notwithstanding Initiative 573.
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?
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 (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;
than to making legislative decisions for the benefit of the people;
(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 RCW 29.15.240.
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. RCW 43.01.015. Similar restrictions, with variations in the years of service, are established for state legislators, RCW 44.04.015; United States representatives, RCW 29.68.015; and United States senators, RCW 29.68.016. The secretary of state may not accept declarations of candidacy or nomination papers, or permit a person's name to appear on the ballot if the person is subject to these restrictions. RCW 29.15.240(1). 3 Citizens suits are allowed to enforce Initiative 573. RCW 7.16.370. 4
Initiative 573 permits the people to write in the name of 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.
a candidate, notwithstanding the restrictions it establishes. RCW 29.51.173. But the effect of such a write-in campaign is limited. If the incumbent write-in candidate wins his or her party's nomination, the candidate is still barred from the general election ballot and the Voters' Pamphlet. See RCW 29.15.240(1); RCW 29.80.010. Thus, the candidate must mount a second write-in campaign for the general election. 5
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, RCW 29.04.070, and the attorney general. The action seeks invalidation of the Term Limits Law and issuance of a writ of mandamus directing the secretary of state to allow incumbents access to the ballot. RAP 16.2(b). The secretary of state opposed the petition, arguing our consideration of Initiative 573 was premature. We, nevertheless, retained the petition. We granted the motion to intervene of public interest groups, U.S. Term Limits, Inc. (USTL) and Citizens for Leaders with Ethics and Accountability
Now, Inc. (CLEAN). We also granted amicus curiae status to the Pacific Legal Foundation (PLF).
In addressing an original action, we are guided by the principles of RAP 16.2 regarding the filing of original actions against a state officer. The parties here have stipulated to the facts so that a factual reference hearing pursuant to RAP 16.2(d) is unnecessary. The case takes the same course of review as any other case where we accept review of a trial court decision. RAP 16.2(e).
The Washington Constitution confers original jurisdiction upon this Court in "mandamus as to all state officers." WASH. CONST. art. IV, § 4. Mandamus will not lie to compel a discretionary act, State ex rel. Burlington Northern, Inc. v. Washington State Utils. & Transp. Comm'n, 93 Wash.2d 398, 410, 609 P.2d 1375 (1980), nor lie to direct a state officer to generally perform constitutional duties. Walker v. Munro, 124 Wash.2d 402, 407-08, 879 P.2d 920 (1994). Mandamus will lie to compel a state officer to undertake a clear duty. Id. at 408, 879 P.2d 920; see also State ex rel. Burlington Northern, 93 Wash.2d at 410, 609 P.2d 1375. We can declare a law unconstitutional in a mandamus action only if such a declaration is necessary to the issuance of the writ. See Walker, 124 Wash.2d at 409, 879 P.2d 920.
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. RCW 29.04.070. The Secretary accepts declarations of candidacy for state executive officers, RCW 29.15.030(1), and legislators whose districts encompass multiple counties. RCW 29.15.030(2). The Secretary makes rules to facilitate the execution of election laws and assists local elections officers by devising uniform forms and procedures. RCW 29.04.080. The Secretary also prepares the official state Voters' Pamphlet, RCW 29.80.010, and certifies names of candidates for placement on the election ballot. See RCW 29.04.210(1), (8); RCW 29.30.101; RCW 29.79.230. Thus the writ would compel the Secretary to undertake a clear legal duty, to accept declarations of candidacy and nominations papers, and certify for placement on the election ballot the names of candidates otherwise disqualified by Initiative 573.
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...
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