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AGLO 1976 No. 4 - January 09, 1976
AGO Opinion Header Image
Slade Gorton | 1969-1980 | Attorney General of Washington

CITIES AND TOWNS ‑- CHARTERS ‑- RESUBMISSION OF PROPOSED CITY CHARTER PROVISIONS FOLLOWING VOTER REJECTION

Although the city council of a charter city does not, under present law, have the authority to prepare and submit a revised city charter, previously prepared by a board of freeholders but initially rejected by the voters, for the further consideration of those voters, the legislature could, constitutionally, authorize such a city council to take that action; also, consideration of several related questions.

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                                                                  January 9, 1976

Honorable Lois North
State Senator, 44th District
10126 Radford Avenue N.W.
Seattle, Washington 98177                                                                                                                 Cite as:  AGLO 1976 No. 4

Dear Senator North:

            By recent letter you have made reference to the rejection, on November 4, 1975, of a proposed new city charter by the voters of the city of Seattle.  Based thereon, you have asked several questions relating to the options which are now available in order to obtain either (1) a resubmission of the same proposed new charter to the voters one more time or (2) the submission of a revised charter proposal based upon portions of the proposed charter which was previously submitted and rejected.  Specifically, you have asked:

            "1) Is there any provision in state statutes which would prohibit the Seattle City Council from re‑submitting the proposed Charter, and if so, could the statute be amended to allow same?

            "2) In case of resubmission, could this be done either at a special election or a general election?

            "3) Does State law permit (or could it be amended to permit) the City legislative authority to revise the proposed Charter and submit it to the electorate?

            "4) According to State law, could the elected Freeholders revise and the City Council resubmit the revised proposed Charter to the electorate?

            "5) Does State law provide (or could it be amended to provide) authority for the City Council to submit 'gateway' amendments for a vote of the people?  If so, is there any limitation on the number of such gateway amendments, or the frequency with which they are submitted?"

             [[Orig. Op. Page 2]]

            We respond to these questions in the manner set forth in our analysis.

                                                                     ANALYSIS

            Question (1):

            A direct answer to your first question would be in the negative.  There is noprohibition in any existing statute or constitutional provision against the submission or resubmission of a proposed new city charter by the legislative authority of a first class city such as Seattle.  This, however, does not mean that such action may legally be taken at the present time for the proper question, analytically speaking, is not whether the action isprohibited but, instead, it is whether it isauthorized.  While the governing body or legislative authority of a first class city is not dependent upon the state legislature for its powers in the same manner as is true with respect to other classes of municipalities,1/ it is axiomatic that there still must be some form of basic authorization, either constitutional or statutory, for the adoption or revision of the charter of such a city.

            At the present time, there is clear authority for the formulation of a new or revised city charter by a special board of freeholders elected for that purpose.  Accord, Article XI, § 10 (Amendment 40) of our state constitution which provides that:

            ". . . Any city containing a population of ten thousand inhabitants, or more, shall be permitted to frame a charter for its own government, consistent with and subject to the Constitution and laws of this state, and for such purpose the legislative authority of such city may cause an election to be had at which election there shall be chosen by the qualified electors of said city, fifteen freeholders thereof, who shall have been residents of said city for a period of at least two years preceding their election and qualified electors, whose duty it shall be to convene within ten days after their election,  [[Orig. Op. Page 3]] and prepare and propose a charter for such city.  Such proposed charter shall be submitted to the qualified electors of said city, and if a majority of such qualified electors voting thereon ratify the same, it shall become the charter of said city, and shall become the organic law thereof, and supersede any existing charter including amendments thereto, and all special laws inconsistent with such charter.  Said proposed charter shall be published in the daily newspaper of largest general circulation published in the area to be incorporated as a first class city under the charter or, if no daily newspaper is published therein, then in the newspaper having the largest general circulation within such area at least once each week for four weeks next preceding the day of submitting the same to the electors for their approval, as above provided.  All elections in this section authorized shall only be had upon notice, which notice shall specify the object of calling such election, and shall be given as required by law.  Said elections may be general or special elections, and except as herein provided shall be governed by the law regulating and controlling general or special elections in said city.  Such charter may be amended by proposals therefor submitted by the legislative authority of such city to the electors thereof at any general election after notice of said submission published as above specified, and ratified by a majority of the qualified electors voting thereon.  In submitting any such charter, or amendment thereto, any alternate article or proposition may be presented for the choice of the voters, and may be voted on separately without prejudice to others."

            In addition, see RCW 35.22.140 ‑ 35.22.190, by which the legislature hasexpressly provided for similar procedures (again originating with a board of freeholders) to replace a charter previously adopted in accordance with this constitutional authorization.

            Under the early decision of the Washington court in Reeves v. Anderson, 13 Wash. 17, 42 Pac. 625 (1895), the  [[Orig. Op. Page 4]] adoption of a new charter to replace an old one2/ is an exercise of the above constitutional grant of authority to "frame a charter."  Nevertheless, the court in that case upheld a statutory predecessor to RCW 35.22.140 by which the 1895 legislature likewise provided for the manner of replacing an existing charter with a new one.  In so holding the court rejected a contention that Article XI, § 10, supra, represented the exclusive means by which a city charter could be adopted or revised so as to preclude the legislature, by mere statute, from authorizing this to be done in any other manner ‑ explaining, at page 22:

            ". . . However, we think that the mode pointed out by the latter part of § 10, art. 11, for submitting proposed amendments to a vote of the people, is not to be construed so as to exclude every other method. . . ."

            The difficulty with both the existing constitutional provision and the present statute, insofar as your first question is concerned, is that neither of these two sources of power authorizes a new or revised charter to be framed and submitted to the voters by the regular, permanent, legislative authority of the city in question ‑ in this case, the Seattle City Council ‑ as opposed to a specially elected board of freeholders.  In addition, there is also an obviously limiting provision in the present text of that city's charter itself; namely, Article XX thereof which reads as follows:

            "Any amendment or amendments to this charter may be proposed in the city council, and if the same be agreed to by a majority of all the members elected, such proposed amendment or amendments shall be entered upon the journal with the yeas and nays of the members voting thereon.  Upon the passage of any such amendment or amendments, the same shall be submitted to electors of the city for their ratification at the next general state or municipal election, which shall be at least sixty days after the adoption of such proposed amendment in the council; and if at such election any such amendment shall be ratified by a majority of the qualified electors voting  [[Orig. Op. Page 5]] thereon, the same shall thereby become a part of this charter, and within five days after such election shall be by the mayor by proclamation published in the city official newspaper and proclaimed a part thereof:  Provided,That if more than one amendment be submitted at the same general state or municipal election the same shall be submitted at such election in such manner that each proposed amendment may be voted on separately without prejudice to others; and provided further, that after the passage of such proposed amendments through the council the same shall be published by the city clerk in two daily newspapers published in said city, for at least thirty days prior to the day of submitting the same to the electors for their approval, as above provided."  (Emphasis supplied.)

            Under the reasoning of the court in Reeves v. Anderson, supra, it would appear (in response to the second part of your initial question) that the "lack of authority" problem emanating from Article XI, § 10 of the constitution and RCW 35.22.140, et seq.,could be rectified by further legislation empowering the city council of any first class city itself to formulate and submit an entire new or revised charter to the city's voters.  Under such legislation the Seattle City Council could, if it desired, adopt as its own proposal the same charter revisions as were previously rejected by the voters on November 4, 1975.  Alternatively, it could make changes in the earlier version designed, perhaps, to make it more acceptable to the voters before submitting it again.

            In order to remedy the further problems posed in this case by the "single amendment" proviso to Article XX of the Seattle charter, however,3/ something further would also appear to be needed.  This additional ingredient would be an express statement in any enabling legislation to the effect that the authority thereby to be granted may be exercised by a city council or other municipal legislative authority notwithstanding any local charter provision to the contrary.  Accord,Winkenwerder v. Yakima, supra, and so much of Article XI, § 10,supra, as requires any charter adopted under its  [[Orig. Op. Page 6]] provisions to be ". . . consistent with and subject to the constitution and laws of this state . . ."

            Question (2):

            Under Article XI, § 10 (Amendment 40), supra, a new or revised city charter, as formulated and submitted by a board of freeholders, may be passed upon by the voters of the city at either a general or a special election.  Likewise, any such statutory authorization for the submission of a new or revised city charter by the city council of a first class city could also allow the proposal to be voted upon at either type of election.

            Question (3):

            We believe that our answer to your first question, supra, is essentially determinative of this question as well.  State law does not presently permit the city legislative authority of a first class city to revise a proposed charter previously formulated by a board of freeholders under Article XI, § 10 (Amendment 40), supra, and submit it to the electorate.  Such authorization could, however, be provided for by statute.

            Question (4):

            This question, as we understand it, contemplates further action on the charter proposal by the same board of freeholders as was initially responsible for its formulation and submission in conjunction with the November 4, 1975, general election referred to in your letter.

            In our opinion, the board of freeholders which formulated and submittedthat proposed new charter, having completely performed all of the functions contemplated by Article XI, § 10 (Amendment 40) and RCW 35.22.140, et seq.,supra, has now exhausted its powers.  Accordingly, if it is desired to utilize those existing constitutional and statutory provisions for the purpose of preparing and submitting another charter revision proposal, it will be necessary that a new board of freeholders be established in the same manner as the prior board was created ‑ although, of course, members of the old board could also serve on a new one if elected thereto.  And while such a new board of freeholders could simply adopt and resubmit the same charter as was earlier rejected, such a board would be equally free to change the proposal in one or more respects before again presenting it to the voters.

             [[Orig. Op. Page 7]]

            Question (5):

            Finally you have asked:

            "Does State law provide (or could it be amended to provide) authority for the City Council to submit 'gateway' amendments for a vote of the people?  If so, is there any limitation on the number of such gateway amendments, or the frequency with which they are submitted?"

            We assume by your reference to the term "gateway amendment," that you are thinking of an amendment to the existing provisions of Article XX of the Seattle City Charter,supra, designed to revise or delete the "single amendment" proviso quoted above in our discussion of question (1); i.e., the kind of amendment to the existing charter which, in responding to that question, we said would be necessary in order to permit the Seattle City Council to submit an entire new charter proposal to the voters as a single proposition ‑ absent enabling state legislation.

            Unquestionably, the city council of Seattle may propose, and the voters may adopt in accordance with Article XX, supra, any amendment to the existing charter which is not, in conflict with a state statute or constitutional provision ‑ including an amendment to Article XX itself.  Furthermore, we do not find in Article XX, supra, or in any state statute or constitutional provision any restriction or limitation upon the number of times that the same proposed amendment may be submitted.

            As far as the legitimacy of a "gateway" amendment, per se, is concerned, the essential issue is whether the continued adherence by Seattle, or any other charter city, to the "single amendment" concept presently encompassed in Article XX of the Seattle charter is either constitutionally or statutorily required at the state level.  In our opinion it is not.

            Article XI, § 10 (Amendment 40), supra, says that any such charter as has previously been adopted pursuant to the provisions thereof

            ". . . may be amended by prosposals therefor submitted by the legislative authority of such city to the electors thereof at any general election after notice of said submission published as above specified, and ratified by a majority of the qualified electors voting thereon.  In submitting any such charter, or  [[Orig. Op. Page 8]] amendment thereto, any alternate article or proposition may be presented for the choice of the voters, and may be voted on separately without prejudice to others."

            This constitutional language, it seems to us, leaves open to each city, by means of its own charter, the establishment of the precise procedures to be followed in formulating and submitting any amendment or amendments thereto.  In short, we do not believe that a "gateway" amendment to the present provisions of Article XX of the Seattle charter, supra, would in any way be violative of Article XI, § 10 (Amendment 40) of the state constitution as last above quoted.  Nor, by the same token, do we find anything in RCW 35.22.030, et seq., or any other existing statutes which would preclude the adoption and implementation of a gateway amendment by the legislative authority and voters of Seattle.

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/See, Winkenwerder v. Yakima, 52 Wn.2d 617, 328 P.2d 873 (1958).

2/The city of Seattle, of course, has long had its own "home rule" charter.   Thus, the proposal which was turned down by the voters at the election to which you have referred was actually one calling for the replacement of that charter with a new one.

3/Short of such a charter amendment as is discussed in our response to question (5) below.

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