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Bob Ferguson

AGLO 1972 No. 28 -
Attorney General Slade Gorton

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                                                                    May 2, 1972

Honorable A. Ludlow Kramer
Secretary of State
Legislative Building
Olympia, Washington 98504                                                                                            Cite as:  AGLO 1972 No. 28 (not official)

Dear Sir:
            This is written in response to your recent letter requesting an official opinion of this office with regard to the constitutionality of the statutory filing fees which are charged to candidates for public offices in this state under the provisions of RCW 29.18.050 and related statutes.1/
            The basic "filing fee" statute, RCW 29.18.050, provides as follows:
            "A fee of one dollar must accompany each declaration of candidacy for a precinct office without salary; a fee of ten dollars for any office with a compensation attached of one thousand dollars per annum or less; a fee equal to one percent of the annual compensation for any office with a compensation attached of more than one thousand dollars per annum.
            "When the candidacy is for:
            "(1) A state or congressional office the fee shall be paid to the secretary of state for deposit in the state treasury.
            "(2) A district office embracing more than one county the fee shall be paid to the secretary of state for equal division between the treasuries of the counties comprising the district.
            "(3) A county office or office for a district comprising part of one county the fee shall be paid to the county auditor for deposit in the county treasury.
             [[Orig. Op. Page 2]]
            "(4) A city or town office the fee shall be paid to the clerk thereof for the city or town treasury."
            While we are, of course, aware of the recent decision by the United States Supreme Court in Bullock v. Carter, 40 L.W. 4211,     U.S.     (February 24, 1972), in which the court invalidated on federal "equal protection" grounds the filing fee statutes of the state of Texas, we are of the opinion that valid distinctions can be made between those statutes and RCW 29.18.050, supra.  The two most important of these distinctions may be summarized as follows:
            (1) Unlike the Texas fee schedule under which the filing fees in certain cases represented nearly a whole year's salary attached to the offices in regard to which they were payable (e.g., a filing fee of $6,250 for one office having an annual salary of only $8,160), the Washington fee schedule is much lower and more reasonable in amount at all levels of office; and the court in Bullock expressly stated that:
            ". . . nothing herein is intended to cast doubt on the validity of reasonable candidate filing fees . . ."
            (2) Secondly, in Texas there was no alternative procedure by which a potential candidate who was unable to pay the filing fee could get on the primary ballot by way of petitioning voters, and writ-in votes were not permitted in primary elections for public office in that state.  However, of course, the same cannot be said of Washington, which does allow write‑in votes in both the primary and general elections.  See, RCW 29.51.100 and 29.51.170.
            The principal vice which the supreme court found in the Texas scheme was described by the court as follows:
            "Unlike a filing fee requirement which most candidates could be expected to fulfill from their own resources or at least through modest contributions, the very size of the fees imposed under the Texas system gives it a patently exclusionary character.  Many potential office seekers lacking both personal wealth and affluent backers are in every practical sense precluded from seeking the nomination of their chosen party, no matter how qualified they might be and no matter how broad or enthusiastic their popular support.  The effect of this exclusionary mechanism on voters is neither incidental nor remote.  Not only are voters substantially limited  [[Orig. Op. Page 3]] in their choice of candidates, but there is the obvious likelihood of this limitation falling more heavily on the less affluent segment of the community, whose favorites may be unable to pay the large costs required by the Texas system.  . . .  This disparity in voting power based on wealth cannot be described by reference to discrete and precisely defined segments of the community as is typical of inequities challenged under the Equal Protection Clause, and there are doubtless some instances of candidates representing the views of voters of modest means who are able to pay the required fee.  But we would ignore reality were we not to recognize that this system falls with unequal weight on voters, as well as candidates, according to their economic status."
            By way of contrast, the filing fees provided for in RCW 29.18.050, supra, do not, in our opinion, have this exclusionary impact upon candidates for offices in this state.
            Moreover, in any event, it is contrary to long-standing policy for this office to express an opinion upon the constitutionality of any duly enacted statutes of this state.  The reasons for this policy have been most recently explained in our letter dated February 24, 1971, to State Senator Hubert F. Donohue, copy enclosed, in which we first stated that:
            "'. . .  The power to declare an act constitutional or unconstitutional is vested solely in the courts.  Consequently, nothing can be gained by this office expressing an opinion as to the constitutionality of a statute.  A pronouncement of unconstitutionality would merely cause confusion and disorder among the administrative officers whose duty it is to give effect to the presumption of constitutionality which attaches to all laws until declared otherwise by a court of competent jurisdiction.'"
            In addition, we made note in this letter of the following provisions of RCW 7.24.110, a part of the uniform declaratory judgments act which was adopted by our legislature in 1935 (see, chapter 113, Laws of 1935):
            "'. . .  In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard,  [[Orig. Op. Page 4]] and if the statute, ordinance or franchise is alleged to be unconstitutional, the attorney general shall also be served with a copy of the proceeding and be entitled to be heard.'  (Emphasis supplied.)"
            Of this statute we then said:
            "By this enactment, the legislature has imposed upon the attorney general a responsibility to appear and present all available legal arguments to support the constitutionality of any duly enacted statute whenever such a statute is attacked in a declaratory judgment proceeding.  . . .
            "Accord, Clark v. Seiber, 49 Wn.2d 502, 503, 304 P.2d 708 (1956), in which the court said of this statute:
            "'. . .  The purpose of this provision is to protect the public, should the parties be indifferent to the result.  The state is interested in the constitutionality of its statutes as they affect the public welfare.  See Parr v. Seattle, 197 Wash. 53, 84 P. (2d) 375 (1938).'"
            Thus, our posture at the present time must be that of remaining free to defend the constitutionality of the subject filing fee statutes in our courts should these statutes now be challenged by parties asserting the applicability thereto of the Bullock decision, supra.  The persons who asked you to submit your current opinion request should, of course, be notified of this fact as quickly as possible in order to facilitate their prompt initiation of a test case if it is their desire to do so.
Very truly yours,
Philip H. Austin
Deputy Attorney General
                                                         ***   FOOTNOTES   ***
1/See, also, RCW 29.21.060, 29.24.070, and 29.80.050.