Moen v. Erlandson

• Decision Date: 22 June 1972
• Docket Number: No. 42159,42159
• Citation: 80 Wn.2d 755,498 P.2d 849
• Parties: Eugene M. MOEN and Margaret E. Moen, husband and wife, et al., Respondents, Edward Goodman and Olive M. Goodman, husband and wife, Intervenors, v. The Honorable C. G. ERLANDSON, Comptroller and City Clerk of the City of Seattle, et al., Petitioners.
• Court: Washington Supreme Court

Page 755

80 Wn.2d 755

498 P.2d 849

Eugene M. MOEN and Margaret E. Moen, husband and wife, et al., Respondents Edward Goodman and Olive M. Goodman, husband and wife, Intervenors, v. The Honorable C. G. ERLANDSON, Comptroller and City Clerk of the City of Seattle, et al., Petitioners.

No. 42159.

Supreme Court of Washington, En Banc.

June 22, 1972.

Slade Gorton, Atty. Gen., Wayne L. Williams, Olympia, Christopher T. Bayley, Pros. Atty., William

R. Creech, Seattle, A. L. Newbould, Corp. Counsel, E. Neal King, Seattle, for appellant.

Eugene M. Moen, pro se.

Barry E. Barnes, Pro Haec Vice, Seattle, for respondent.

FINLEY, Associate Justice.

This case comes before us on a writ of certiorari from a decision of the superior court declaring the one year durational voting residency requirement of Const. art. 6, § 1 and RCW 29.07.070 and 29.07.080 to be in violation of the fourteenth amendment of the United States Constitution, and enjoining election officials from enforcing it. Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (decided by the U.S. Supreme Court March 21, 1972), is controlling authority; consequently, we affirm the decision of the superior court.

This matter was presented in the Superior Court of King County upon an agreed statement of facts which reveals that all plaintiffs had moved to Washington from out of state and had established residence in Seattle. ¹ All plaintiffs contacted the appropriate Seattle election officials and attempted to register to vote. They were told that they were ineligible to register to vote until they had lived in the state of Washington for 11 months. As a result, plaintiffs were unable to vote in the general election of November 2, 1971. They brought this action (a) seeking a declaratory judgment that Const. art. 6, § 1, is violative of the United States Constitution, and (b) also asking that the Seattle election officials be permanently enjoined from enforcing the one year durational voting residency requirement of Const. art. 6, § 1 and RCW 29.07.070 and 29.07.080. The superior court, as mentioned above, held the foregoing provisions of state law were in violation of the United States Constitution and enjoined the defendants from enforcing them.

The issues presented in this case were recently decided by the United States Supreme Court in Dunn v. Blumstein, Supra. In holding Tennessee's durational residency requirements of (a) one year in the state and (b) three months in the county prior to voting registration, unconstitutional, the Court stated:

Fixing a constitutionally acceptable period is surely a matter of degree. It is sufficient to note here that 30 days appears to be an ample period of time for the State to complete whatever administrative tasks are necessary to prevent fraud--and a year, or three months, too much.

At 348, 92 S.Ct. at 1006. The Court held further that durational voting residency requirements are unconstitutional unless the state can demonstrate that such laws are necessary to promote a compelling state interest.

Nothing distinguishes this case factually from Blumstein. The state of Washington has failed to demonstrate any compelling state interest that would justify its requirements of a 90-day county and a one-year state residency prior to voting. Accordingly, the 90-day and the one-year durational residency requirements specified by Const. art. 6, § 1 and RCW 29.07.070 and 29.07.080 are, per Blumstein, violative of the United States Constitution. Additionally, we observe in passing that durational residency requirements of more than thirty days cannot be constitutionally sustained unless it can be clearly demonstrated that they are required by a compelling state interest.

At this point in history, it seems to us it should be undebtable that our United States Constitution and the decisions of the United States Supreme Court interpreting the Constitution are the supreme law of the land. Furthermore, despite contentious thinking, views, and actions to the contrary in the past and today in some expected and unexpected quarters, nothing is more basic to our system of government, its continuation, viability, and vitality, than this long-recognized, accepted and well-established principle. The alternative--purely and simply--would be anarchy with every man a law unto himself, with no-one secure in person or effects from the personal peccadillos and the either rational or irrational idiosyncrasies and motivations of others.

As emphasized above, the instant case cannot be distinguished either factually or legally from the Blumstein case. The only problem in the instant case, if there is one, is whether we should be swayed by and should follow individual personal views and values (no matter how strongly held, and whether or not history should prove them to be meritorious or merely personal idiosyncrasies), or whether we should follow and give effect to the law of the land. Unless we deliberately and voluntarily choose to violate our own oaths of office and the supreme law of the land, there is no choice in the instant case. On the basis of the controlling authority of Blumstein, the judgment of the trial court must be affirmed. It is so ordered.

HAMILTON, C.J., and ROSELLINI, HUNTER, NEILL, STAFFORD, WRIGHT and UTTER, JJ., concur.

HALE, Associate Justice (dissenting).

What we have before us is a clinical picture of the constitution interpreted according to the travel syndrome. As far as I can discern, whatever connection exists between the court's opinion--and Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), upon which it depends--and the constitution of the United States is purely coincidental.

Both cases, I fear, ignore the basic premise that ours is a free government of separated and balanced powers so declared in the words and phrases of the constitutions. The two cases fail to recognize that, whereas the judiciary has been established as the ultimate check and balance upon the legislative and executive power, there is no corresponding check and balance upon the judicial power except intellectual restraint, the language of the constitutions, and commonsense. In this case, as in the Tennessee case, I perceive a grave breach of the separation of powers principle, a colossal ballooning of the Fourteenth Amendment, a co-related abuse of the judicial power, and a want of commonsense. In breaching the separation of powers doctrine, as it is structured in the constitution, the two cases work an equally unconstitutional abridgment of the basic powers of self-government. Although they appear to acknowledge that a state has a valid, overriding and vital interest in maintaining the integrity of its political process, and in identifying traveler and citizen, the two opinions proceed to strip the state of its readiest, most economical and fairest means of protecting those interests. I therefore dissent to this court's opinion and, accordingly, would express my disagreement with Dunn v. Blumstein, Supra, upon which it rests.

Travel, it is said, broadens one's horizons. Quite likely, too, it is an essential fact of life, for it has been an enduring phenomenon common to all cultures from the nomadic to the modern. Travel has been so pervasive an ingredient of life, primitive and modern, that, like the weather, the draftsmen of our constitutions apparently saw no need to secure it as a privilege in writing, nor to prescribe it as an interpretive aid to the constitutions or to the many amendments adopted since the Fourteenth. It remained for the judiciary to devise a new approach to constitutional interpretation, based not on what the language says or fails to say or what is expressed or implied, but rather on how the whole thing affects or is affected by travel.

Among the many impediments to travel are chiefly its expense and its discomfort, and these render miniscule in comparison the disadvantage that, while traveling, one cannot vote. Unfortunately, neither court suggests any means of lightening the traveler's burdens and alleviating the cost and discomfort except, after a short stay, to allow him to vote. But whether the traveler is in search of broader horizons, greener pastures, a job, or is a fugitive, and whatever indirect burdens a reasonable residence provision may put upon him, a state should be held to act within its constitutional power, I think, in discouraging travel undertaken with the primary purpose of voting or running for public office. In welcoming the weary traveler, the state is not obliged to include instanter in its hospitality all of the attributes of state citizenship.

If the traveler would tarry awhile--under our state constitution for a period of a year--then, of course, it is right that he be entitled to exercise all of the rights and privileges of the state's citizenship. If, however, he is merely passing through or sojourning here, then it ought to be within a state's powers--all the while granting him the rights vouchsafed him in the Bill of Rights and assuring him of his extra- constitutional right of travel--to deny him voting privileges until he was made up his mind to stay, and evidenced this intention by remaining for a reasonable time.

These, I think, are the qualities of travel as they affect principles of constitutional law and our structure of government. Unless a state lays a direct burden on the right to travel or seeks to close its borders to the traveler, traveling as a juridical phenomenon should be given no more a conceptual effect in constitutional law than, for example, breathing. The right to travel, like the more fundamental right breathing, simply does not enter the constitutional arena unless it is directly denied, abridged or penalized.

That the courts see in the prosaic and mundane provision of a state constitution prescribing one year's residence in the state as a requirement for voting an abridgment of the right to travel, comes as a surprise....