OFFICES AND OFFICERS ‑- COUNTY ‑- RECALL ‑- NUMBER OF SIGNATURES NECESSARY FOR RECALL OF COUNTY OFFICER
The percentage of the total number of votes cast for all candidates for a certain King county office which is determinative of the number of voters who must sign a petition to recall the person holding such office is twenty-five percent, as provided for in RCW 29.82.060 (1).
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March 3, 1971
Honorable Francis E. Holman
State Senator, First District
Olympia, Washington 98501
Cite as: AGO 1971 No. 11
By letter, previously acknowledged, you have requested an opinion of this office on a question which we paraphrase as follows:
What percentage of the total number of votes cast for all candidates for a particular King county office is determinative of the number of voters who must sign a petition to recall the person holding such office under RCW 29.82.060?
We answer your question in the manner set forth in our analysis.
At the outset it is to be noted that although King county is currently operating under its own charter, as provided for in Article XI, § 4 (Amendment 21) of our state Constitution, § 670 of that charter states that
"The holder of any elective office may be recalled in accordance with the provisions of general law." (Emphasis supplied.)
Thus, the logical starting place for any analysis of the signature requirements for the recall of an elective officer [[Orig. Op. Page 2]] of that county is the state Constitution. Article I, §§ 33 and 34 (Amendment 8) establish the right and outline the procedure to recall elected officials (except judges of courts of record), as follows:
Article I, § 33:
"Every elective public officer in the state of Washington expect [except] judges of courts of record is subject to recall and discharge by the legal voters of the state, or of the political subdivision of the state, from which he was elected whenever a petition demanding his recall, reciting that such officer has committed some act or acts of malfeasance or misfeasance while in office, or who has violated his oath of office, stating the matters complained of,signed by the percentages of the qualified electors thereof, hereinafter provided, the percentage required to be computed from the total number of votes cast for all candidates for his said office to which he was elected at the preceding election, is filed with the officer with whom a petition for nomination, or certificate for nomination, to such office must be filed under the laws of this state, and the same officer shall call a special election as provided by the general election laws of this state, and the result determined as therein provided." (Emphasis supplied.)
Article I, § 34:
"The legislature shall pass the necessary laws to carry out the provisions of section thirty-three (33) of this article, and to facilitate its operation and effect without delay. . . .
"The percentages required shall be, state officers, other than judges, senators and representatives, city officers of cities of the first class, school district boards in cities of the first class; county officers of counties of the first, second and third classes, twenty-five per cent. Officers of all other political subdivisions, cities, towns, townships, precincts and school districts not herein mentioned, and state senators and representatives, thirty-five per cent." (Emphasis supplied.)
[[Orig. Op. Page 3]]
These provisions were added to the Constitution through the amendatory process in 1912. The following year the legislature enacted such legislation as it deemed necessary to implement the right established by this amendment. See, chapter 146, Laws of 1913.1/ Among the sections of this act was § 8, which provided, in material part, as follows:
"When a person, committee or organization demanding the recall of any public officer shall have secured upon such recall petition the signatures of a number of legal voters equal to twenty-five per cent. [[percent]]of the total number of votes cast for all candidates for the office to which the officer whose recall is demanded was elected at the preceding election, in case such officer be a state officer, an officer of a city of the first class, a member of a school board in a city of the first class, or a county officer of a county of the first, second or third class; or the signatures of a number of legal voters equal to thirty-five per cent. [[percent]]of the total number of votes cast for all candidates for the office to which the officer whose recall is demanded was elected at the preceding election, if the officer whose recall is demanded is an officer of any other political subdivision, city, town, township, precinct or school district than those hereinbefore mentioned, or is a [[Orig. Op. Page 4]] state senator or representative, he or they may submit said petition to the officer with whom the charge is filed for filing in his office. . . ." (Emphasis supplied.)
This statute, slightly reorganized but with no material substantive change,2/ was reenacted in 1965 (as a part of the recodification of Title 29 RCW) and now reads as follows:
"When the person, committee, or organization demanding the recall of a public officer has secured sufficient signatures upon the recall petition he or it may submit the same to the officer with whom the charge was filed for filing in his office. The number of signatures required shall be as follows:
"(1) In the case of a state officer, an officer of a city of the first class, a member of a school board in a city of the first class, or acounty officer of a county of the first, second or third class‑-signatures of legal voters equal to twenty-five percent of the total number of votes cast for all candidates for the office to which the officer whose recall is demanded was elected at the preceding election.
"(2) In the case of an officer of any political subdivision, city, town, township, precinct, or school district other than those mentioned in subdivision (1), and in the case [[Orig. Op. Page 5]] of a state senator or representative‑- signatures of legal voters equal to thirty-five percent of the total number of votes cast for all candidates for the office to which the officer whose recall is demanded was elected at the preceding election." (Emphasis supplied.)
Under RCW 36.13.010, classifying counties on the basis of their population, King county is currently a "class AA" county ‑ i.e., one having a population of 500,000 or more persons. The other classifications set forth in this statute are:
!tp1,1 Class A !tr210,000 to 499,999
First Class!tr 125,000 to 209,999
Second Class!tr 70,000 to 124,999
Third Class!tr 40,000 to 69,999
Fourth Class!tr 18,000 to 39,999
Fifth Class!tr 12,000 to 17,999
Sixth Class!tr 8,000 to 11,999
Seventh Class!tr 5,000 to 7,999
Eighth Class!tr 3,300 to 4,999
Ninth Class!tr 0 to 3,299
Thus on the face of it, without more, it might appear that the percentage of voter signatures required for the recall of a King county officer would be thirty-five percent as provided for in subsection (2) of RCW 29.82.060 for any "political subdivision" not mentioned in subsection (1). This result would flow from the fact that only "first, second or third class" counties are mentioned in subsection (1) of the statute. However, this conclusion becomes considerably less logical when note is made of the fact that thepresent classification of counties, as set forth in RCW 36.13.010, was not established until 1953 ‑ or forty years after the recall amendment and implementing statutes were adopted.
In 1912 and 1913, when Amendment 8 to the Constitution and its legislative implementation were enacted, there were 29 classes of counties provided for by statute.3/ Of these, [[Orig. Op. Page 6]] first, second and third class counties were the largest in terms of population.4/ The classes of A and AA counties were not created until 19195/ and 1953,6/ respectively. Thus, rather than being plain on its face, RCW 29.82.060 (as well as Amendment 8 itself, in so far as it sets requisite population percentages) must now be viewed as ambiguous ‑ and thus susceptible to interpretation through application of principles of statutory and constitutional construction. State v. Houck, 32 Wn.2d 681, 203 P.2d 693 (1949). We resolve this ambiguity in favor of a conclusion that the recall of a King county officer is governed by the twenty-five percent standard of RCW 29.82.060 (1), rather than by the thirty-five percent requirement of RCW 29.82.060 (2).
In thus concluding we first note, and reject as an absurdity,7/ the possibility that the people in 1912, or the legislature in 1913, would have intended that the percentage factor required for recall in the more populous counties would be increased from twenty-five to thirty-five percent by the mere establishment of new class designations for certain of these larger counties. It seems to us most likely that the purpose for creating a smaller percentage requirement for the largest counties was to avoid the burden and expense the larger percentage requirement would necessitate as the number of signatures represented by the percentage grew very large and unwieldly.
This leaves us then with either of the following two possible approaches to the matter:
(1) That those specific counties which were in the first, second and third classes, for the purpose of Article I, § 34, and RCW 29.82.060, in 1912 and 1913, should thereafter remain so for this purpose; or
(2) That any counties presently exceeding the minimum population of the least of the three classes of counties to which the twenty-five percent requirement applied in 1912 and 1913 ‑ i.e., 60,000 persons ‑ should continue to be [[Orig. Op. Page 7]] governed by this percentage requirement.
Manifestly, either of these two approaches would lead to a conclusion that King county, with a present population of 1,156,633 according to 1970 census figures, and with a 1913 population of something in excess of 300,000, is one of those counties to which the twenty-five percent requirement, rather than the thirty-five percent requirement applies.
Some degree of further support for this result also may be drawn from a provision, now codified as RCW 36.13.090, which was first enacted as a part of the 1919 act establishing class A counties ‑ and then was appropriately amended in the 1953 act providing for class AA counties. This statute states that:
"All provisions of law relative to the powers and duties of first class countiesand the officers thereof shall apply with equal force to class A counties and class AA counties, except as otherwise provided by law." (Emphasis supplied.)
It seems clear that the purpose of RCW 36.13.090, as originally enacted and later amended, was to make those laws which were formerly applicable only to numerically classified first class counties applicable to the new alphabetically classified A and AA counties. It is difficult to imagine a law which applies more dramatically to the powers and duties of county officers than does the recall, in that it provides a remedy for the misuse of these powers or the failure properly to discharge these duties.
Accordingly, in conclusion it is our opinion that the percentage of the total number of votes cast for all candidates for a King county office which is determinative of the number of voters who must sign a petition to recall the person holding such office is twenty-five percent, as [[Orig. Op. Page 8]] provided for in RCW 29.82.060 (1).8/
We trust that the foregoing will be of assistance to you.
Very truly yours,
WAYNE L. WILLIAMS
Assistant Attorney General
*** FOOTNOTES ***
1/The Washington supreme court later recognized the nature and necessity of this 1913 enactment when, in Roberts v. Millikin, 200 Wash. 60, 73, 93 P.2d 393 (1939), it said:
". . . The Constitution itself, other than declaring the right to recall and prescribing the officer with whom the recall petitions are to be filed and the required number of signatures, does not outline the procedure to be followed. The matter of procedure was, in a large measure, and of necessity, left to the discretion of the legislature. The express mandate that the legislature should, without delay, pass the necessary laws to carry out the provisions of the Constitution and facilitate its operation, implies that this provision was not deemed self-executing, but required legislation to make it operative."
2/See, § 29.98.010, chapter 9, Laws of 1965, providing that:
"The provisions of this title insofar as they are substantially the same as statutory provisions repealed by this chapter, and relating to the same subject matter, shall be construed as restatements and continuations, and not as new enactments."
3/Section 1, chapter 136, Laws of 1901.
!tp1,24/First class !tr over 80,000
Second class !tr over 70,000 and under 80,000
Third class !tr over 60,000 and under 70,000
5/Section 1, chapter 168, Laws of 1919.
6/Section 1, chapter 22, Laws of 1953.
7/See, e.g., State ex rel. Thorp v. Devin, 26 Wn.2d 333, 173 P.2d 994 (1946), imploring the interpreter of a statute to avoid an absurd consequence so far as possible.
8/We do not pass, in this opinion, upon the rather troublesome question of which percentage requirement applies to a present third class county having a population of between 40,000 and 60,000; however, we would respectfully suggest legislative clarification as to this situation.