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AGLO 1973 No. 16 - January 31, 1973
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Slade Gorton | 1969-1980 | Attorney General of Washington

DISTRICTS ‑- SCHOOLS ‑- MERGER OF SCHOOL DISTRICTS ‑- FORT LEWIS MILITARY RESERVATION ‑- DUPONT-FORT LEWIS ‑- CLOVER PARK

Chapter 63, Laws of 1972, 2nd Ex. Sess., provides the exclusive method for annexing the whole of the Fort Lewis Military Reservation to either Dupont-Fort Lewis or Clover Park School District.

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                                                                 January 31, 1973

Honorable Dale E. Hoggins
State Representative, 21st District
Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1973 No. 16

Dear Sir:

            This is written in response to your recent request for our opinion regarding the establishment of a single school district to serve pupils residing on the Fort Lewis Military Reservation.  We have paraphrased your question as follows:

            Does chapter 63, Laws of 1972, 2nd Ex. Sess., provide the exclusive method for annexing the whole of the Fort Lewis Military Reservation to either Dupont-Fort Lewis or Clover Park school district or can there still be an annexation pursuant to the preexisting provisions of chapter 28A.57 RCW.

            In our opinion chapter 63, supra, is exclusive in those factual situations to which it applies.

                                                                     ANALYSIS

            For a number of years the Fort Lewis Military Reservation has been served primarily by two separate school districts, Clover Park and Dupont-Fort Lewis.1/   In apparent response to this situation and any others which might arise elsewhere in the state, the 1972 legislature enacted the act to which you have referred ‑ chapter 63, Laws of 1972, 2nd Ex. Sess.  Section 1, now  [[Orig. Op. Page 2]] codified as RCW 28A.57.195, provides that:

            "Notwithstanding other provisions of this chapter or any other provision of law and except as otherwise provided in section 2 of this 1972 act, as of July 1, 1972, any United States military reservation in the state of Washington with more than two thousand five hundred common school age children in public schools resident thereon shall be included wholly within the boundaries of a single school district.  Such single school district shall be one of the school districts presently having boundary lines within such military reservation and serving pupils thereon.  The procedure for achieving such single school districts where they do not now exist, or in any year in the future when there are more than two thousand five hundred common school age children on such a military reservation resident therein, shall be as prescribed in section 2 of this 1972 act.

            Section 2 (RCW 28A.57.196) then states that:

            "On or before June 1, 1972, or in any year in the future when there are more than two thousand five hundred common school age children on a military reservation as referred to in section 1 of this 1972 act resident therein, whichever is the case, and notwithstanding other provisions of this chapter or any other provision of law, the county committee on school district organization of each county in which such a United States military reservation is located, or in the case such military reservation is located in two counties, the joint county committee established pursuant to RCW 28A.57.240, shall order effective July 1 of the then calendar year the annexation of portions of reservation territory not currently within the single school district, as required by section 1 of this 1972 act, to one of the school districts encompassing a portion of the military reservation: PROVIDED, That notwithstanding any other provision of this act the annexation order shall not include territory of school  [[Orig. Op. Page 3]] districts on such military reservations in which none or less than a majority of the pupils residing within that portion of the district within such military reservation have one or more parents serving in the military under such military command. Notwithstanding any other provision of law, the decision as to which school district shall serve the pupils residing within such military reservation shall rest solely with the county committee on school district organization of the county in which the affected military reservation is located.  The county committee on school district organization shall order such equitable transfer of assets and liabilities as is deemed necessary for the orderly transfer of the territory in accordance with transfers in other annexation proceedings authorized under this chapter."  (Emphasis supplied.)

            We have underscored the portion of this second section which we think is determinative of your question.  Under the preexisting provisions of chapter 28A.57 RCW to which you have referred as affording a possible alternative means of accomplishing an annexation of certain territory of either Dupont-Fort Lewis or Clover Park School District to that of the other, the authority to decide ". . . which district should serve the pupils residing within such military reservation . . ." is vested partially in (a) the county committee(s) on school district organization (RCW 28A.57.050 (1)),2/ (b) the State Board of Education (RCW 28A.57.060 (2))3/ and (c) in the case under consideration, the  [[Orig. Op. Page 4]] voters of the district(s) from which the property would conceivably be transferred.  See in particular, RCW 28A.57.180 which covers this subject in part and which provides that:

            "For the purpose of transferring territory from one school district to another district, a petition in writing may be presented to the intermediate school district superintendent, as secretary of the county committee, signed by a majority of the registered voters residing in the territory proposed to be transferred, or by the board of directors of one of the districts affected by a proposed transfer of territory if there is no registered voter resident in the territory, which petition shall state the name and number of each district affected, describe the boundaries of the territory proposed to be transferred, and state the reasons for desiring the change and the number of children of school age, if any, residing in the territory:  Provided, That the intermediate school district superintendent, without being petitioned to do so, may present to the county committee a proposal for the transfer from one school district to another of any territory in which no children of school age reside:  Provided  [[Orig. Op. Page 5]] further, That the intermediate school district superintendentshall not complete any transfer of territory pursuant to the provisions of this section which involves ten percent or more of the common school student population of the entire district from which such transfer is proposed, unless he has first called and held a special election of the voters of the entire school district from which such transfer of territory is proposed for the purpose of affording said voters an opportunity to approve or reject such proposed transfer, and has obtained approval of the proposed transfer by a majority of those registered voters voting in said election; and if such proposed transfer is disapproved, the state board of education shall determine whether or not said district is meeting or capable of meeting minimum standards of education as set up by the state board.  If the board decides in the negative, the superintendent of public instruction may thereupon withhold from such district, in whole or in part, state contributed funds."  (Emphasis supplied.)

            In the event the portion of the Fort Lewis Military Reservation served by either Clover Park or Dupont-Fort Lewis were transferred to the other, ten percent of the common school student population of either such district would in fact be transferred.4/   Accordingly the decision authorizing such an annexation would be subject, not only to approval by the county committee(s), but also to approval by both the electorate designated by RCW 28A.57.180, supra, and as in all cases, the State Board of Education.  However, under § 2 of chapter 63, supra, the decision making authority rests solely with the county committee on school district organization (see, RCW 28A.57.030-28A.57.040) notwithstanding any other provision of law.

            In the recent case ofDavis v. County of King, 77 Wn.2d 930, 468 P.2d 679 (1970), the court had occasion to consider the meaning of this language in  [[Orig. Op. Page 6]] another statutory context.  Involved in that case were the then existing provisions of RCW 39.33.010 (since amended) relating to intergovernmental dispositions of surplus property, which read as follows:

            "Notwithstanding any provision of law to the contrary, the state or any municipality or any political subdivision thereof, may sell, transfer, exchange, lease or otherwise dispose of any property, real or personal, or property rights, including but not limited to the title to real property, to the state or any municipality or any political subdivision thereof on such terms and conditions as may be mutually agreed upon by the proper authorities of the state and/or the subdivisions concerned:  Provided, That such property is determined by decree of the superior court in the county where such property is located, after publication of notice of hearing is given as fixed and directed by such court, to be either necessary, or surplus or excess to the future foreseeable needs of the state or of such municipality or any political subdivision thereof concerned, which requests authority to transfer such property."  (Emphasis supplied.)

            In considering the meaning of the underscored portion of this statute, the court, at page 932, said:

            "RCW 39.33.010 commences with the phrase 'Notwithstanding any provision of law to the contrary'.  This is significant.  Notwithstanding means 'without prevention or obstruction from or by; in spite of' Merriam-Webster Third International Dictionary (1964); see alsoState ex rel. Morse v. Christianson, 262 Wis. 262, 55 N.W.2d 20 (1952).  This signifies that legislature declared its intent that despite any enactment to the contrary, and without prevention or obstruction by any prior act, the intergovernmental disposal of property must be preceded by the required superior court decree."

            Giving the same effect to the comparable language appearing in § 2 of chapter 63,supra, it follows that  [[Orig. Op. Page 7]] the above underscored portion of this section should be read as having the following meaning:  Despite any other laws to the contrary, and without prevention or obstruction by any such other prior acts, the decision as to which of the affected districts is to serve the pupils residing on a military reservation governed by the act is to be made solely by ". . . the county committee on school district reorganization of the county in which the affected military reservation is located . . ."  Therefore, in our opinion, the provisions of chapter 63, supra, must be viewed as exclusive in those factual situations to which it applies ‑ including that of the Fort Lewis Military Reservation in Pierce County.5/

             We trust the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General


ROBERT E. PATTERSON
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/The boundaries of Franklin-Pierce School District No.402, Bethel School District No. 403, Yelm School District No. 2 and North Thurston School District No. 3 also encroach upon the Fort Lewis Military Reservation.  However, we are informed that none or less than a majority of the pupils residing within the portion of such districts within the reservation have one or more parents serving in the military and under such military command, and thus such districts are excluded from consideration in connection with the annexation mandated by chapter 63, Laws of 1972, 2nd Ex. Sess.  See, § 2,infra.

2/The county committee is authorized to receive, consider and revise proposals initiated by petition and those presented by the ISD superintendent, and to submit those proposals which it determines "provide for satisfactory improvement in the school district system of the county and state" to the State Board of Education.  In the event territory in more than one county is involved, see RCW 28A.57.240 and 28A.57.245.

3/RCW 28A.57.060 (2) directs the State Board of Education to:

            ". . . receive, file, and examine the proposals and the maps, reports, records, and other materials relating thereto submitted by county committees and to approve such proposals and so notify the county committees when said proposals are found to provide for satisfactory improvement in the school district system of the counties and the state and for an equitable adjustment of the assets and liabilities of the districts involved or affected:  Provided, That whenever such proposals are found by the state board to be unsatisfactory or inequitable, the board shall so notify the county committee and, upon request, assist the committee in making revisions which revisions shall be resubmitted within sixty days after such notification."

4/As of October, 1972, Dupont-Fort Lewis enrolled approximately 1,236 students of which approximately 965 lived on the reservation, and Clover Park enrolled approximately 13,845 students of which approximately 2,415 lived on the reservation.

5/As we understand it, the only reason that this enactment has not yet been implemented by the Pierce county committee on school district reorganization is because of pending litigation in both state and federal courts involving the make‑up of the county committees, the constitutionality of the 1972 act and the rights (if any) of the Dupont-Fort Lewis School District thereunder.  See,Dupont-Fort Lewis School Dist. No. 7, et al. v. Hendry, et al., C.A. 903-II;Dupont-Fort Lewis School District No. 7 v. Henry, et al., C.A. 872-II; andDupont-Fort Lewis School District No. 7 v. Pierce County Committee, Etc., U.S. D.C. W.D. S.D., Cause No. 14-73C3.

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