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AGO 1991 No. 3 - February 01, 1991
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

CITIES AND TOWNS ‑- CHARTERS ‑- ELECTIONS ‑- FREEHOLDERS

1.   A first class city may, by ordinance, require candidates for the office of freeholder to be nominated in a primary election.

2.  A first class city may, by ordinance, require candidates for the office of freeholder to run for specific freeholder positions, as opposed to all candidates running against one another. 

3.  A first class city may, by ordinance, require candidates for the office of freeholder to reside in specific areas or districts of the city.  However, the election itself must be city wide.  The office of freeholder is a city wide office and a first class city cannot, by ordinance, authorize freeholders to be elected by the voters of a district of the city. 

                                                              - - - - - - - - - - - - - 

                                                                 February 1, 1991 

The Honorable Ruth Fisher
State Representative, District 27
435 John L. O'Brien Building, AS-33
Olympia, Washington 98504 

                                                                                                                   Cite as:  AGO 1991 No. 3 

Dear Representative Fisher: 

            You have requested our opinion on several questions relating to the election of freeholders in first class cities.  We paraphrase your questions: 

            1. Can a first class city require a primary election for the nomination of freeholders?
           2. Can a first class city require freeholder candidates to run for positions, as opposed to all candidates running against one another?
            3. Can a first class city require freeholder candidates to run by district, as opposed to running at large within the city? 

             [[Orig. Op. Page 2]]  

The answer to questions one and two is yes.  The answer to question three is no, as qualified in our analysis. 

                                                                BACKGROUND

            Article 11, section 10, of the Washington Constitution, empowers cities with a population of 10,000 or more to frame a charter for its own self government.  Article 11, section 10 (amendment 40) provides in part: 

            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 resident 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, and prepare and propose a charter for such city. 

            Your question focuses on first class cities.  RCW 35.01.010 provides that:  "A first class city is one having at least twenty thousand inhabitants at the time of its organization or reorganization."  RCW 35.01.020 defines a second class city as "one having at least ten thousand inhabitants at the time of its organization or reorganization."  Since article 11, section 10 applies to cities with a population in excess of 10,000 inhabitants, both first and second class cities have the right to frame a charter.1/ 

            Since your question focuses on first class cities, we will so limit our analysis. 

            Freeholders are public officers.  Fitts v. Gibbs, 40 Wn.2d 444, 447, 244 P.2d 241 (1952).  They may be elected to adopt a new charter or to alter or revise an existing charter.  There are two ways to institute a freeholder election.  First, the legislative authority of a city may provide for an election by  [[Orig. Op. Page 3]] ordinance.  RCW 35.22.050 provides in part:2/

            Whenever the population of the city is ten thousand or more, the legislative authority thereof shall provide by ordinance for an election to be held therein for the purpose of electing fifteen freeholders for the purpose of framing a charter for the city.

            Second, the voters of a city may file a petition calling for the election of freeholders.  RCW 35.22.140 provides in part:3/ 

            On the petition of a number of registered voters of a city equal to twenty-five percent of the total votes cast at the last preceding city election, the city council of a charter city shall, or without such petition may, cause an election to be held for the purpose of electing a board of fifteen freeholders for the purpose of preparing a new charter for the city by altering, revising, adding to or repealing the existing charter including all amendments thereto. 

            Your question asks whether first class cities may impose certain requirements in connection with the election of freeholders.  A first class city might seek to impose these requirements in two ways.  First, it might act through the passage of an ordinance.  Second, it might act through the provisions of its charter, if a charter has already been adopted. 

            For the purpose of this opinion, we assume that you are asking about a first class city, that either has not adopted a charter or has adopted a charter, that does not specify how it is to be revised or amended.  We do address the situation in which a first class city amends its charter pursuant to provisions contained in the charter itself. 

             [[Orig. Op. Page 4]]  

            With this background in mind, we turn to your first question. 

                                                                     ANALYSIS
            Question 1: 

            Can a first class city require a primary election for the nomination of freeholders? 

            A primary election is a statutory procedure for nominating candidates for public office.  RCW 29.01.130.  As we pointed out in our background discussion, freeholders are public officers.  Fitts v. Gibbs, 40 Wn.2d, at 447.  The nomination of candidates is part of the election process.  The Constitution addresses the question of election process specifically.  Article 11, section 10 (amendment 40) provides: 

            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. 

(Emphasis added.)  Thus, the Constitution provides that freeholder elections are governed by the law regulating and controlling elections in the city.  This constitutional provision is carried over in statute.  RCW 35.22.080, which pertains to freeholder elections called by the city legislative authority, provides:4/ 

            The election of the members of the board of freeholders and that upon the proposition of adopting or rejecting the proposed charter and the officers to be elected thereunder, the returns of both elections, the canvassing thereof and the declaration of the result shall be governed by the laws regulating and controlling elections in the city. 

             [[Orig. Op. Page 5]]  

            A similar requirement exists with regard to freeholder elections held in response to a petition filed by voters.  RCW 35.22.180 provides:5/ 

            The election of the board of freeholders and that upon the proposition of adopting the proposed new, altered or revised charter, may be general or special elections and except as herein provided, said elections, the returns, the canvassing thereof and the declaration of the result shall be governed by the laws regulating and controlling elections in the city.  In both cases the notice specifying the object of the election must be given at least ten days before the day of election.

            Based on the provisions of article 11, section 10, RCW 35.22.080 and RCW 35.22.180, we conclude that a city may require a primary election to nominate candidates for the office of freeholder.  It should be noted that there are state statutes governing primary elections in cities including RCW 29.21.0106/ 

            and 29.13.070.  A city ordinance requiring a primary election for the office of freeholder would be consistent with these statutes. 

            Question 2: 

            Can a first class city require freeholder candidates to run for positions, as opposed to all candidates running against one another? 

            The answer to this question is also yes.  A requirement that freeholder candidates run for specific positions is part of the election process.  As we explained in response to question 1, elections of freeholders are governed by the laws regulating and controlling elections in the city.  In our judgment, this cloaks a first class city with the authority to require freeholder candidates to run for specific positions.  This requirement may be imposed by ordinance. 

            There is a state statute on the subject of freeholder positions.  RCW 35.22.055 provides: 

             [[Orig. Op. Page 6]]  

            Notwithstanding any other provision of law, whenever the population of a city is three hundred thousand persons or more, not less than ten days before the time for filing declarations of candidacy for election of freeholders under Article XI, section 10 (amendment 40), of the state Constitution, the city clerk shall designate the positions to be filled by consecutive number, commencing with one.  The positions to be designated shall be dealt with as separate offices for all election purposes, and each candidate shall file for one, but only one, of the positions so designated. 

            Thus, if a city has 300,000 or more inhabitants, it must elect freeholder candidates by position.  Cities with fewer than 300,000 inhabitants retain the option of electing freeholder candidates without reference to specific positions. 

            Question 3: 

            Can a first class city require freeholder candidates to run by district, as opposed to running at large within the city? 

            There are two ways by which a city might require freeholder candidates to run by district.  First, a candidate might be required to live in a certain part of the city (a district) but the election is conducted city wide.  Second, a candidate might be required to live in and be elected from a specific district, with only the voters of that district allowed to vote for the candidate.  This would be a district election rather than a city wide election. 

            Your first two questions focus on election procedure.  The essence of your third question is whether a first class city can add additional requirements that a freeholder candidate must meet (residency) and whether a candidate may be elected by the voters in part of the city.  In this respect, your third question is different than your first two questions and, in our judgment, more difficult. 

            There are two basic rules the court has applied in construing article 11, section 10.  The first is that the mandatory requirements of article 11, section 10 may not be circumvented.  The court has applied this rule in several of its decisions, most recently in Burns v. Alderson, 51 Wn.2d 810, 322 P.2d 359 (1958).  Burns concerned a provision in article 11, section 10, as originally enacted, that required a proposed charter to be published in two daily newspapers in the city for  [[Orig. Op. Page 7]] at least 30 days prior to the election on the charter.7/ 

            The City of Yakima submitted a charter amendment to the voters without giving the required notice.  The court ruled that the charter amendments were invalid.  The court stated: 

            It may very well be that actual notice is more effective [and the] constitution might well be amended to provide for that sort of notice, but until it is so amended, this court is bound by the constitution, and we are not at liberty to substitute some other device which might be considered more effective. 

           . . . 

            In bothWade v. Tacoma, 4 Wash. 85, 29 Pac. 983, and State ex rel. Lynn v. Superior Court, 20 Wn. (2d) 138, 146 P. (2d) 543, we said in unmistakable terms that the constitutional requirement above quoted was mandatory, and that it could not be circumvented. 

51 Wn.2d at 812.  Thus, a city must comply with the mandatory provisions of article 11, section 10. 

            The second principle is that a city with its own charter may legislate on every subject not inconsistent or hostile to the Constitution or general law.  The Court discussed this principle inState ex rel. Hindley v. Superior Court, 70 Wash. 352, 126 P. 920 (1912).  Hindley concerned a city charter provision that permitted the charter to be amended by initiative without the election of freeholders.8/ 

            A petition was filed with the city  [[Orig. Op. Page 8]] clerk but the city refused to hold an election.  The court ruled that this method of amending a charter was not inconsistent with the Constitution and ordered an election.  The court said: 

            [Article 11, section 10] has been considered by the court in a number of cases, in all of which it has been held that a city is bound by the general laws of the state, but that the purpose and intent of the constitution was to give to cities of the first class, having the right to adopt their own charters, the fullest power in that respect, provided only that their acts shall be consistent with and subject to the constitution and general laws.  The word 'consistent' may have been inadvertently used by the framers of the constitution.  Literally it would imply that there had been either legislative or constitutional expression upon the particular subject under review.  But it has been given its evident meaning and so applied by this court in many cases; that is, that a city with its own charter may legislate upon every subject not inconsistent with or hostile to the statutes or constitution . . . . 

70 Wash. at 355-56.  With these two principles in mind, we turn to the constitutional requirements for freeholder candidates.  Article 11, section 10 provides for the election of "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 . . . ."  The statutes pertaining to the election of freeholders repeat these requirements.  RCW 35.22.050 which applies when the legislative authority calls for the election of freeholders, provides:9/ 

            The members of the board of freeholders must be qualified electors and must have been residents of the city for a period of at least two years prior to their election. 

RCW 35.22.140, which deals with election of freeholders pursuant to a voter's petition, provides:10/ 

             [[Orig. Op. Page 9]]  

            The members of the board of freeholders must be qualified electors and must have been residents in the city for a period of at least two years prior to their election. 

Article 11, section 10 and RCW 35.22.050 and [35.22].140 set out three requirements for candidates:

            1. A candidate must be a freeholder.
           2. A candidate must be a resident of the city for at least two years.
            3. A candidate must be a qualified elector. 

            The first requirement, that candidates be "freeholders," has been struck down by the Washington Supreme Court.  The Constitution does not define the term "freeholder," however, the court has interpreted the term to mean one who owns either a legal or equitable title to real estate.  Daniels v. Fossas, 152 Wash. 516, 518, 278 P. 412 (1929); Bay Indus. Inc. v. Jefferson Cty, 33 Wash. App. 239, 241, 653 P.2d 1355 (1982). 

            InSorenson v. Bellingham, 80 Wn.2d 547, 496 P.2d 512 (1972), a city denied the application of a candidate to run for the position on the board of freeholders because the candidate did not own property in the city.  The court ruled that, "[t]hose provisions of the fortieth amendment to the Washington State Constitution and RCW 35.22.140 and [35.22].050, requiring [a candidate] to be a freeholder violate the equal protection clause of the fourteenth amendment to the United States Constitution."  80 Wn.2d at 559-60. 

            In light ofSorensen, the Washington Constitution imposes two requirements on freeholder candidates.  Candidates must be residents of the city for two years11/

            and be qualified electors.  In our opinion these requirements are mandatory.  A city could not by ordinance eliminate or reduce the residency requirement to one year or increase it to three years.

             [[Orig. Op. Page 10]]  

            Your third question has two aspects to it.  First, can a city require candidates elected city wide to reside in a specific district or area of the city?  Second, can a freeholder be elected by the voters of a particular district instead of the voters of the city as a whole?

            With regard to the first aspect of your question, it is our opinion that a city may impose an additional residency requirement on freeholder candidates.  Nothing in article 11, section 10 or RCW 35.22.050 and 35.22.140 prohibit additional requirements, so long as those requirements are not inconsistent with the Constitution or the statutes. 

            There is precedent, in a slightly different context, for cities imposing additional requirements on elected officers.  The court considered this question inState ex rel. Griffiths v. Superior Court, 177 Wash. 619, 33 P.2d 94 (1934).  Griffiths concerned a provision in a city charter that prohibited one from holding office in the city if the person held another municipal office.  The case arose when the director of a school district, that was held to be a municipal office, was elected to the city council.  An action was filed to prevent the newly elected councilman from taking his seat. 

            The councilman argued that the charter provision violated article 11, section 10 and other state statutes dealing with the legislative powers of a city.  The court rejected this argument stating: 

            The only attack made . . . upon the charter is that it purports to superadd certain qualifications necessary for elective office for those imposed by the legislature.  Assuming, for the sake of argument, that the language of the charter is to be interpreted as, in fact, imposing superadded qualifications, it does not follow that it contravenes the statute.  Had the framers of the charter sought to lessen the requirements demanded by the statute, a different question would be presented, for then the charter would be in direct conflict with the statute.  But that is not the case here.  [The statute] merely provides that no person shall be competent to hold elective office unless he possesses certain qualification.  It does not say that no other requirements shall be prescribed, nor does it say that the political subdivision therein named may not impose restrictions not inconsistent with the statute. 

177 Wn. at 623-24. 

             [[Orig. Op. Page 11]]  

            We believe this principle is applicable to freeholder candidates as well.  Neither article 11, section 10 nor the statutes governing the election of freeholders state that no other requirements shall be prescribed.  A residency requirement is not inconsistent with the constitutional and statutory requirements that a freeholder candidate be a resident of the city for two years and an elector.  Accordingly, we believe that a city may impose such a residency agreement. 

            In our judgment, a first class city may impose this requirement by ordinance.  RCW 35.22.280(1) confers upon first class cities the power "[T]o provide for general and special elections, for questions to be voted upon, and for the election of officers . . . ."  This power is granted to all first class cities, even cities that have not adopted a charter.  In light of this specific grant of authority to provide for the election of officers, we conclude that a first class city may impose this residency requirement upon the office of freeholder by ordinance. 

            This brings us to the second aspect of your third question.  Can a city require a freeholder to be elected only by the voters of a particular district?  In our judgment the answer is no.12/ 

             In speaking of freeholder elections, article 11, section 10 states: 

            [T]he legislative authority of such city may cause an election to be hadat which election there shall be chosen by the qualified electors of said city, fifteen freeholders thereof . . . . 

(Emphasis added.) 

            We read this provision of article 11, section 10 as a command that the qualified electors of the city elect all 15  [[Orig. Op. Page 12]] freeholders.  If freeholders were elected by a district, the qualified electors of the city would be electing only the freeholders who resided within that district.  As we read the Constitution, the office of freeholder is a city wide office and all electors of the city are entitled to vote for freeholder candidates. 

            The court has not considered this particular question.  However, inState ex rel. Wiesenthal v. Denny, 4 Wash. 135, 29 P. 991 (1892), the court considered a city charter that differed from article 11, section 10 with regard to the vote needed to adopt charter amendments.  The city charter provided:  "If at said election a majority of all the lawful voters voting thereat shall by their votes ratify any amendment so submitted . . . ."  (Emphasis added.)  4 Wash. at 144.  Article 11, section 10 provides that charter amendments are adopted if "ratified by a majority of the qualified electors votingthereon."  (Emphasis added.) 

            At issue in the case was a charter election in which 8,294 ballots were cast.  Of these, 1,461 votes were cast in favor of the amendment and 1,107 votes were opposed.  There were 5,726 voters that did not vote on the charter amendment.  4 Wash. at 144.  Under the charter, the amendment failed because a majority of those voting in the election (thereat) did not vote in favor of the charter.  Under article 11, section 10, the charter amendments were approved because they were ratified by a majority of the voters who voted on the issue (thereon). 

            The court ruled that the Constitution controlled stating: 

            [B]ecause the constitution plainly declares that if a majority of the qualified electors votingthereon ratify the proposed charter it shall become the charter of the city.  To our minds the language concerning amendments is no less vigorous and controlling, and must receive like construction.  It is the right of the people to have their charter amended by the majority vote of those who vote thereon, and having so amended it, the realtor is without cause of action. 

4 Wash. at 147.  (Emphasis added.)  In this case, article 11, section 10 commands that freeholders shall be elected by the qualified electors of the city.  It is our opinion that a court would also view this as a mandatory command. 

            To summarize our answer to question 3:  First class cities can by ordinance require candidates for the office of freeholder to reside in a specific district.  The freeholder election (but not nomination) must be city wide and freeholders cannot be  [[Orig. Op. Page 13]] elected solely by the qualified electors residing in their districts. 

            We trust the foregoing will be of assistance to you. 

Very truly yours, 

KENNETH O. EIKENBERRY
Attorney General

WILLIAM B. COLLINS
Assistant Attorney General 

                                                         ***   FOOTNOTES   ***

1/As originally adopted, article 11, section 10 applied only to cities containing a population of 20,000 inhabitants or more.  In 1964, article 11, section 10 was amended by amendment 40 and the population requirement was reduced to 10,000 inhabitants. 

2/RCW 35.22.050 was enacted in the first legislative session following statehood.  Laws of 1890, p. 216, § 3, part.  The statute was amended once, in 1965, in response to amendment 40.  The population requirement was reduced from 20,000 to 10,000 inhabitants.  Laws of 1965, 1st Ex. Sess., ch. 47, § 7, p. 1800.

3/RCW 35.22.140 was enacted in 1895.  Laws of 1895, ch. 27, § 1, p. 42, part.  Since that time the statute has been amended three times.  Laws of 1925, Ex. Sess., ch. 137, § 1, p. 344; Laws of 1945, ch. 55, § 1, p. 189; Laws of 1965, 1st Ex. Sess., ch. 47, § 11, p. 1803. 

4/RCW 35.22.080 was part of the original statute enacted by the first Legislature in 1890.  Laws of 1890, p. 216, § 3, part; Laws of 1890, p. 223, § 6, part. 

5/This requirement was part of the 1895 law that dealt with voters' petitions calling for freeholder elections.  Laws of 1895, ch. 27, § 5, p. 43. 

6/RCW 29.21.010 was amended in 1990.  Laws of 1990, ch. 59, § 89, p. 630.  The amendment takes effect July 1, 1992. 

7/Amendment 40 eliminated the requirement in article 11, section 10, that notice be given to city newspapers for 30 days prior to the election.  The amendment provides that the charter 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 election.  Article 11, section 10 (amendment 40). 

8/The charter provision in question was similar to a statute that provided for direct amendment of city charters by voters.  Laws of 1903, ch. 186, § 1, p. 393, now codified as RCW 35.22.120.

9/RCW 35.22.050 was initially adopted by the first legislative session of the state.  Laws of 1890, p. 216, § 3. 

10/RCW 35.22.140 was initially adopted in 1895.  Laws of 1895, ch. 27, § 1, p. 42. 

11/The two-year residency requirement in article 11, section 10, has not been challenged.  However, a five‑year residency requirement for freeholders elected to frame county charters, pursuant to article 11, section 4 (amendment 21), has been held to be constitutional.  Fischnaller v. Thurston County, 21 Wash. App. 280, 584 P.2d 483 (1978). 

12/Our answer relates to the election of freeholders rather than the nomination of freeholder candidates.  We do not mean to imply that a city is prohibited from nominating freeholder candidates by district in a primary election in which only electors of a district vote for freeholder candidates who reside in that district.  The requirements of article 11, section 10 deal with the election of freeholders not the nomination of freeholder candidates.  However, freeholder candidates nominated in such a district primary must be elected in a city wide election. 

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