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AGO 1992 No. 22 - September 29, 1992
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

CITIES AND TOWNS--CHARTERS--AMENDMENT--COUNTIES--AUDITOR---ELECTIONS--Requirements for Placing a City Charter Amendment on the Ballot

In a charter city or charter code city the qualified voters may petition, asking for the adoption of a charter amendment.  If the petition meets the requirements of the statute, it will be placed on the ballot at the next general election.  It is not necessary under state law for a city council to pass a resolution directing the county auditor to place on the ballot a city charter amendment proposed by the people.

                                                                 * * * * * * * * * *

                                                              September 29, 1992

Honorable Ellen Craswell
State Senator, District 23
309 Legislative Building
Post Office Box 40423
Olympia, Washington  98504-0423

                                                                                                                 Cite as:  AGO 1992 No. 22

Dear Senator Craswell:

            By letter previously acknowledged, you requested our opinion on a question we paraphrase as follows:

            Is it necessary under state law for a city council to pass a resolution directing the county auditor to place on the ballot a city charter amendment proposed by electors of the city?

The answer to this question is no.

                                                                    ANALYSIS

            We begin by determining which cities in this state may have charters.  This is governed by article 11, section 10 (amendment 40) of the Washington Constitution, which provides in part as follows:

            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, and prepare and propose a charter for such city.

(Emphasis added.)  See also RCW 35.21.600, .610, 35.22.030.  The Legislature has classified municipal corporations as first, second, third, or fourth class.  See chapter 35.01 RCW.  First class cities have twenty thousand or more inhabitants; second class cities have ten thousand or more inhabitants.  RCW 35.01.010, .020.  Since both meet the constitutional requirement of ten thousand inhabitants, both are allowed to adopt charters.

            In addition to the classification of municipal corporations in RCW 35.01, the Legislature has enacted another scheme for the organization of municipal corporations -- the optional municipal code set forth in Title 35A RCW.  The optional municipal code authorizes the creation of a charter code city, which it defines as a city

            having at least ten thousand inhabitants at the time of its organization or reorganization which has either initially incorporated as a charter code city and has adopted a charter under the procedure prescribed in this title; or which, as an incorporated municipality, has elected to be classified as a charter code city and to be governed according to the provisions of this title and of its adopted charter.

RCW 35A.01.030.  Thus, three kinds of cities have authority to adopt charters:  first class, second class, and charter code cities.  All three must permit charter amendments that are proposed by the city's electors, and that meet certain statutory requisites, to be placed on the ballot for submission to the voters.

            The specific provisions relating to the amendment of city charters are different for code and noncode cities, so they will be dealt with separately here.  We turn first to noncode cities.

            Statutes governing city charters in both first and second class cities are found in RCW 35.22.030-.200.  See RCW 35.23.680.  The requirements applicable to a petition calling for submission of a charter amendment to the voters are set forth in RCW 35.22.120 and .130, which provide as follows:

                        On petition of a number (equal to fifteen percent of the total number of votes cast at the last preceding general state election) of qualified voters of any municipality having adopted a charter under the laws of this state, asking the adoption of a specified charter amendment, providing for any matter within the realm of local affairs, or municipal business, the said amendment shall be submitted to the voters at the next regular municipal election, occurring thirty days or more after said petition is filed, and if approved by a majority of the local electors of the municipality voting upon it, such amendment shall become a part of the charter organic law governing such municipality.

RCW 35.22.120 (emphasis added).

                        A petition containing the demand for the submission of the proposed charter amendment or for an election to be held for the purpose of electing a board of freeholders for the purpose of preparing a new charter for the city as provided in RCW 35.22.140 shall be filed with the city clerk and each signer shall write his place of residence after his signature.  This and RCW 35.22.120 do not deprive city councils of the right to submit proposed charter amendments but affords a concurrent and additional method of submission.

RCW 35.22.130 (emphasis added).  To submit a charter amendment to the electorate, therefore, proponents of the measure must gather the specified number of signatures of qualified voters on a petition, and must file the petition with the city clerk.[1]   The proposed amendment then "shall be submitted to the voters at the next regular municipal election" that occurs 30 days or more after the petition is filed.  RCW 35.22.120.

            Obviously, nothing in RCW 35.22.120 or .130 requires that the city council pass a resolution directing the county auditor to place a proposed city charter amendment on the ballot.  These two statutes appear to describe all of the conditions that must be met to have such a measure submitted to the voters.  If the county auditor's obligation to place the matter on the ballot is contingent on his receipt of a resolution of the city council directing him to do so, then this requirement must be found in some other part of the law.

            The other likely source of such a requirement, if there were one, is the election code.  RCW 29.13.020(2), which is part of that code, provides in part as follows:

                        The county auditor, as ex officio supervisor of elections, upon request in the form of a resolution of the governing body of a city, town, or district, presented to the auditor at least forty-five days prior to the proposed election date, may, if the county auditor deems an emergency to exist, call a special election in such city, town, or district, and for the purpose of such special election he or she may combine, unite, or divide precincts.

Laws of 1992, ch. 37, § 2, p. 109 (emphasis added).  This provision allows the county auditor to call a special election if he has a resolution from the governing body of the local government so requesting.  RCW 35.22.120, the statute regarding petitions for submission of city charter amendments, states that such measures will be submitted to voters at "the next regular municipal election".  (Emphasis added.)

            The election code assigns different definitions to the terms "general" and "special" election.  A "general election" is an election "required to be held on a fixed date recurring at regular intervals."  RCW 29.01.070.  A "special election" is any election that is not a "general election".  RCW 29.01.170.  According to RCW 29.01.005, these definitions apply to the terms when used in Title 29 RCW.  We believe the definition of "general election" in RCW 29.01.070 applies as well to the usage of this term in RCW 35.22.120.  No definition for the term is provided in chapter 35.22 RCW.  Its meaning, therefore, should be discerned by reading those provisions of chapter 35.22 RCW that deal with elections in pari materia with pertinent portions of the election code, including the definitions section.  See, e.g., State v. Wright, 84 Wn.2d 645, 650, 529 P.2d 453 (1974).

            If the election code definitions of the terms "general election" and "special election" are used in these statutory provisions, it becomes clear that RCW 29.13.020(2) and 35.22.120 address different situations.  Since the need for a city council resolution in RCW 29.13.020(2) is triggered only if a special election is to be held, and RCW 35.22.120 provides for submitting a city charter amendment to the electorate at a general election, we conclude that RCW 29.13.020(2) does not require that a city council pass a resolution directing a county auditor to place on the ballot a city charter amendment proposed by the voters pursuant to RCW 35.22.120 and .130.  Furthermore, we find no other provisions in Title 29 RCW that would impose such a requirement.

            We turn now to charter code cities.  RCW 35A.09.010 and .020 describe how city charters may be amended in charter code cities.  They provide as follows:

                        The charter of a charter code city may be amended by proposals therefor submitted by resolution of the legislative authority of such city to the electors thereof at any general election, after publication of such proposed charter amendment in the manner provided in chapter 35A.08 RCW for publication of a proposed charter, and upon notice of election as provided by law.  If such proposed charter amendment is ratified by a majority of the qualified electors voting thereon it shall become a part of the charter organic law governing such charter code city.

RCW 35A.09.010 (emphasis added).

                        Upon the filing with the county auditor of a sufficient petition signed by registered voters of a charter code city, in number equal to at least ten percent of the votes cast at the last general municipal election, seeking the adoption of a specified charter amendment set forth in the petition, providing for any matter within the realm of local affairs, or municipal business, or structure of municipal government, offices, and departments, said amendment shall be submitted to the voters at the next general municipal election if one is to be held within one hundred and eighty days, or at a special election to be held for that purpose not less than ninety days, nor more than one hundred and eighty days after the filing of the certificate of sufficiency of the petition.  The proposed charter amendment shall be published as provided in RCW 35A.09.050.  Upon approval by a majority of the registered voters voting thereon, such amendment shall become a part of the charter organic law governing such charter code city.

RCW 35A.09.020 (emphasis added).  A plain reading of these two provisions reveals that the first, RCW 35A.09.010, requires a resolution, while the second, RCW 35A.09.020, does not.  We believe that the second statute, RCW 35A.09.020, is the only one applicable to city charter amendments petitioned by the electorate.  Since this statute does not require that a resolution be passed by the city council directing the county auditor to submit petitioned charter amendments to the voters, we conclude that none is required.

            RCW 35A.09.010 applies to charter amendments proposed by the city's "legislative authority".  We are aware that the State Supreme Court has held that the "legislative authority" of a city includes the voters when they act in a legislative capacity.  In State ex rel. Linn v. King Cy. Superior Court, 20 Wn.2d 138, 146 P.2d 543 (1944), the court decided that the phrase "legislative authority" as used in article 11, section 10 of the Washington Constitution[2]-- the constitutional provision relating to city charters -- must be read to include the voters when exercising their rights of initiative or referendum.  Id. at 155.  See alsoBurns v. Alderson, 51 Wn.2d 810, 813-14, 322 P.2d 359 (1958).  If this interpretation were applied to RCW 35A.09.010, it would mean that a city council resolution is required to place on the ballot a voter proposal to amend a city charter.

            We do not believe, however, that "legislative authority" as used in RCW 35A.09.010 should be interpreted to include the electorate when petitioning for city charter amendments.  The court in State ex rel. Linn was concerned only with the provisions of article 11, section 10 of the Washington Constitution, not with any statutory provisions.  An earlier decision that the court in State ex rel. Linn partially overruled, Benton v. Seattle Electric Co., 50 Wash. 156, 96 P. 1033 (1908), had held that the phrase "legislative authority" as used in article 11, section 10 and in certain statutes relating to the amendment of city charters meant the mayor and city council only.  Id. at 161.  That portion of the Benton decision regarding statutory use of the phrase was not affected by State ex rel. Linn.[3]

            While the court has said that a statute is presumed to have been enacted "in the light of existing judicial decisions that have a direct bearing upon it", Kelso v. Tacoma, 63 Wn.2d 913, 917, 390 P.2d 2 (1964), the paramount purpose of statutory construction is to effectuate legislative intent.  E.g., Cherry v. Municipality of Metro. Seattle, 116 Wn.2d 794, 799, 808 P.2d 746 (1991).  Thus, where the Legislature intends a different meaning for a phrase used in a statute than the court ascribed to that same phrase when used in a related constitutional provision, the legislative intent will prevail.  Here, the Legislature clearly intended a different meaning.  If the phrase "legislative authority" as used in RCW 35A.09.010 were read to include the voters, there would be two statutes, side by side in the law, that prescribed how voters could propose the amendment of city charters in charter code cities.

            The Legislature is presumed not to engage in meaningless acts.  E.g., John H. Sellen Constr. Co. v. Department of Rev., 87 Wn.2d 878, 883, 558 P.2d 1342 (1976).  For this reason, statutes are to be interpreted in a manner that renders no part superfluous.  E.g., Cox v. Helenius, 103 Wn.2d 383, 387-88, 693 P.2d 683 (1985).  To read both RCW 35A.09.010 and .020 as applying to voter-initiated proposals would be to conclude that the Legislature adopted a meaningless or superfluous law.  If RCW 35A.09.010 and .020 are to be read in a way that gives each word in the two provisions meaning, then they must be read to apply to charter amendments proposed by different entities: RCW 35A.09.010 to proposals by the legislative authority, such as the city council; and RCW 35A.09.020 to proposals by the electorate.

            One other provision in Title 35A RCW might suggest that a city council resolution is needed to enable the county auditor to place a voters' proposal to amend the city charter on the ballot.  That provision, RCW 35A.29.170, provides in part as follows:

                        Initiative and referendum petitions authorized to be filed under provisions of this title, or authorized by charter, or authorized for code cities having the commission form of government as provided by chapter 35.17 RCW, shall be in substantial compliance with the provisions of RCW 35A.01.040 as to form and content of the petition, insofar as such provisions are applicable; shall contain a true copy of a resolution or ordinance sought to be referred to the voters; and must contain valid signatures of qualified electors of the code city in the number required by the applicable provision of this title.  Except when otherwise provided by statute, referendum petitions must be filed with the clerk of the legislative body of the code city within ninety days after the passage of the resolution or ordinance sought to be referred to the voters, or within such lesser number of days as may be authorized by statute or charter in order to precede the effective date of an ordinance.

(Emphasis added.)  This provision establishes requirements for all petitions authorized under Title 35A RCW, including petitions for the submission of proposed city charter amendments under RCW 35A.09.020.  Its requirement that petitions contain a "resolution or ordinance sought to be referred to the voters" does not, we believe, apply to charter amendment proposals initiated by the electorate because such proposals are not referred to the voters.

            In a referendum, the electorate either approves or rejects an act of the Legislature.  Yelle v. Kramer, 83 Wn.2d 464, 476, 520 P.2d 927 (1974).  In contrast, "[b]y the initiative the electorate may propose and enact legislation whether it amends existing law or enters an entirely new field."  Id.  Charter amendments proposed by the voters must be deemed initiatives rather than referenda.  Consequently, when the electorate petitions for the submission of a city charter amendment, there will be no "resolution or ordinance" to be referred to the voters.  Accordingly, this requirement of RCW 35A.29.170 applies only to referendum petitions, and not to initiative petitions.

            In summary, we find no provision of state law that makes the county auditor's duty to place on the ballot a city charter amendment proposed by the voters contingent on his receipt of a city council resolution directing him to do so.

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

                                    Very truly yours,

                                    KENNETH O. EIKENBERRY
                                    Attorney General

                                    TANYA BARNETT
                                    Assistant Attorney General

TB:aj


    [1]       Although we find no provision of law specifically requiring the city clerk to transmit the petition to the county auditor, we think this step can be fairly implied from a reading of the statutes as a whole.  The county auditor is the officer vested with the "overall responsibility to maintain voter registration and to conduct state and local elections in a charter county."  RCW 29.01.043.  For the county auditor to carry out these duties, there must be a process by which he receives such petitions.

    [2]       The court decided State ex rel. Linn twenty years before article 11, section 10 was amended in 1964.  Although the court's decision therefore was based on a version of the provision that no longer exists, we note that the original article 11, section 10 and the current article 11, section 10 -- also known as amendment 40 -- are substantially similar, the principal difference being that amendment 40 reduced to 10,000 the minimum number of inhabitants required to entitle a city to adopt a charter.  Usage of the phrase "legislative authority" was carried forward into amendment 40.  Thus, we believe that State ex rel. Linn is still controlling law on the interpretation of the phrase "legislative authority" in article 11, section 10.

    [3]       A number of cases that succeeded Benton also held that certain statutes employing the phrase "legislative authority" of a city referred to the mayor and the city council.  See, e.g., Neils v. Seattle, 185 Wash. 269, 53 P.2d 848 (1936); Dolan v. Puget Sound Traction, Light, and Power Co., 72 Wash. 343, 130 P. 353 (1913); Ewing v. Seattle, 55 Wash. 229, 104 P. 259 (1909).  To the extent they construed only the statutory use of the term, these cases similarly were unaffected by State ex rel. Linn.

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