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May 7, 1971
Honorable Paul Kraabel
State Representative, 46th Dist.
5221 18th N.E.
Seattle, Washington 98105
Cite as: AGLO 1971 No. 71 (not official)
Dear Representative Kraabel:
By recent letter you have requested an opinion of this office;
". . . as to whether or not the number of consecutive terms a State Representative or State Senator may serve could be limited through an initiative to the people."
We believe that this question must be answered in the negative.
The terms of office of members of the house of representatives are presently covered by Article II, § 5 of our state constitution, as follows:
"The next election of the members of the house of representatives after the adoption of this Constitution shall be on the first Tuesday after the first Monday of November, eighteen hundred and ninety, and thereafter, members of the house of representatives shall be elected biennially and their term of office shall be two years; and each election shall be on the first Tuesday after the first Monday in November, unless otherwise changed by law."
Likewise, the terms of office for state senators are also set forth in the constitution; namely, in Article II, § 6, as follows:
[[Orig. Op. Page 2]]
"After the first election the senators shall be elected by single districts of convenient and contiguous territory, at the same time and in the same manner as members of the house of representatives are required to be elected; and no representative district shall be divided in the formation of a senatorial district. They shall be elected for the term of four years, one‑half of their number retiring every two years. The senatorial districts shall be numbered consecutively, and the senators chosen at the first election had by virtue of this Constitution, in odd numbered districts, shall go out of office at the end of the first year; and the senators, elected in the even numbered districts, shall go out of office at the end of the third year."
In addition, § 7 of Article II sets forth the following provision with respect to the 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."
In its opinion in In re Bartz, 47 Wn.2d 161, 287 P.2d 119 (1955), our state supreme court observed that:
". . . 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. . . ."
With all of the foregoing in mind, we next note the scope of the initiative power reserved to the people under Article II, § 1 (Amendment 7) of our state constitution. On the one hand, this power is available to the people as a means of passing any law which the legislature itself could enact. See, State ex rel. Miller v. Hinkle, 156 Wash. 289, 286 Pac. 839 (1930); Love v. King County, 181 Wash. 462, 469, 44 P.2d 175 (1935). As stated in the Love case,
". . . By Art. II, § 1, Amendment 7 to the state constitution, it is provided that the legislative authority of the state shall be vested in the legislature, with an express [[Orig. Op. Page 3]] reservation in the people of the power to propose bills and laws and to enact or reject the same at the polls. The first power so reserved is the initiative. The passage of an initiative measure as a law is the exercise of the same power of severeignty as that exercised by the legislature in the passage of a statute. . . ." (Emphasis supplied.)
However, on the other hand, it is our best judgment, as fully explained and documented in an opinion dated February 20, 1970, to the secretary of state, copy enclosed, that the initiative power is not available as a means of amending the state constitution. On the contrary, the exclusive means of proposing an amendment to the constitution is that which is set forth in Article XXIII, § 1, thereof, as follows:
"Any amendment or amendments to this Constitution may be proposed in either branch of the legislalature; . . ."1/
Since nothing in either §§ 5 or 6 of Article II, supra, relating to terms, purports to limit the number of consecutive terms which a member of the house of representatives or senator may serve, it logically follows that the number of consecutive terms a particular legislator has served cannot be regarded as a qualification or disqualification for reelection to another term. The only qualifications which such a legislator must have in order to serve further terms are those specified in § 7 of Article II. Since these qualifications may not be added to be a mere act of the legislature, and since the people's law-making authority under Article II, § 1 (Amendment 7) does not allow them to enact any law which the legislature, itself, could not enact, it follows that the initiative power may not be utilized as a means of establishing a limitation upon the number of consecutive terms which a state representative or state senator may serve. Such limitations may only be imposed by means of a constitutional amendment ‑ proposed and adopted in the manner set forth in Article XXIII, § 1, supra.
We trust that the foregoing will be of assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Philip H. Austin
Deputy Attorney General
*** FOOTNOTES ***
1/Accord, Ford v. Logan, 79 W.D.2d 147, P.2d [[79 Wn.2d 147, 483 P.2d 1247]](April 15, 1971).