INCREASE IN NUMBER BY VOTER APPROVAL

COUNTIES ‑- NONCHARTER ‑- COMMISSIONERS ‑- INCREASE IN NUMBER BY VOTER APPROVAL ‑- UNIFORMITY ‑- CONSTITUTIONALITY 

A bill permitting the voters of noncharter counties with populations of 210,000 or more to increase the number of county commissioners from three to five is more likely than not unconstitutional.

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                                                                  March 20, 1987

Honorable Mary Margaret Haugen
State Representative, Tenth District
331 House Office Building
Olympia, WA 98504 

Cite as:  AGO 1987 No. 11                                                                                                                

 Dear Representative Haugen:

             By letter previously acknowledged you requested the opinion of this office concerning the constitutionality of Engrossed Substitute Senate Bill 5020.  We paraphrase your question as follows:

             Is Engrossed Substitute Senate Bill 5020, which permits the voters of noncharter counties with populations of 210,000 or more to increase the number of county commissioners from three to five, constitutional under Washington Constitution article 11, sections 4 and 5?

             We answer your question in the negative for the reasons set forth in our analysis.

                                                                      ANALYSIS

             Section 1 of Engrossed Substitute Senate Bill 5020 would amend RCW 36.32.010 as follows:

             There is established in each ((organized)) county in this state a board of county commissioners((, to)).  Except as provided in section 3 of this act, each county legislative authority shall consist of three qualified electors, ((and)) two of ((said board of commissioners)) whom shall constitute a quorum to do business.

              [[Orig. Op. Page 2]]

 Section 2 would amend RCW 36.32.020 as follows:

             Except as provided in section 3 of this act, the board of county commisioners [commissioners] of each county shall divide their county into three commissioner districts so that each district shall comprise as nearly as possible one‑third of the population of the county ((:PROVIDED, That)). The territory comprised in any voting precincts of such districts shall remain compact, and shall not be divided by the lines of ((said))the districts.

             However, the commissioners of any county composed entirely of islands and with a population of less than thirty-five thousand may divide their county into three commissioner districts without regard to population, except that if any single island is included in more than one district, the districts on ((such))that island shall comprise, as nearly as possible, equal populations.

            The lines of the districts shall not be changed oftener [sic] than once in four years and only when a full board of commissioners is present.  The districts shall be designated as districts numbered one, two, and three.

 Section 3 would add a new section to RCW 36.32 as follows:

            The legislative authority of any noncharter county with a population greater than two hundred ten thousand may be increased to five members.  An increase in legislative authority membership must be approved by a majority of county voters voting upon the proposition in a general election.  The proposition may be submitted at any general election by resolution of the county commissioners or upon petition of the county voters equal to at least ten percent of the voters voting at the last county general election.  The resolution calling for a vote on the proposition must be approved at least sixty days before the general election.

             Any petition requesting that such an election be held shall be submitted to the county auditor for verification of the signatures thereon.  Within no more than thirty days after the submission of the petition, the auditor shall determine if the petition contains the requisite number of valid signatures.  The auditor shall certify whether or not the petition has been signed by the  [[Orig. Op. Page 3]] requisite number of county voters and forward such petition to the county legislative authority.  If the petition has been signed by the requisite number of county voters, the county legislative authority shall submit such a proposition to the voters for their approval or rejection at the next general election held at least sixty days after the proposition has been certified by the auditor.

             If the proposition receives majority voter approval, the size of the county legislative authority shall be increased to five positions, three of which shall constitute a quorum to do business.

             The two newly-created positions shall be filled at elections to be held in the next year.  The county shall, as provided in this section, be divided into five legislative authority districts, so that each district shall comprise as nearly as possible one‑fifth of the population of the county.  No two members of the existing county legislative authority may, at the time of the designation of such districts, permanently reside in one of the five districts.  The division of the county into five districts shall be accomplished as follows:

             (1) The county legislative authority shall, by the second Monday of March of that year, adopt a resolution creating the districts;

             (2) If by the second Tuesday of March of that year the county legislative authority has failed to create the districts, the prosecuting attorney of the county shall petition the superior court of the county to appoint a referee to designate the five commissioner districts.  The referee shall designate such districts by no later than June 1st of that year.  The two legislative authority districts within which no existing member of the county legislative authority permanently resides shall be designated as districts four and five.

 (Emphasis supplied.)

             Sections 4, 5, and 6 address the length of the terms of the county commissioners and establish a procedure for filling vacancies.

              [[Orig. Op. Page 4]]

             Finally, section 7 amends RCW 36.16.030 as follows:

             Except as provided elsewhere in this section, in every county there shall be elected from among the qualified voters of the county a county assessor, a county auditor, a county clerk, a county coroner, three county commissioners, a county prosecuting attorney, a county sheriff and a county treasurer((:  PROVIDED, That)).  In counties of the fourth, fifth, sixth, seventh, eighth, and ninth classes no coroner shall be elected and the prosecuting attorney shall be ex officio coroner ((:  PROVIDED FURTHER, That)).  In ninth class counties no county auditor or assessor shall be elected ((and)), the county clerk shall be ex officio county auditor, and the county treasurer shall be ex officio county assessor.  Counties with a population greater than two hundred ten thousand may have five county commissioners as provided in RCW 36.32.010 and sections 3 through 5 of this act.

             Article 11 section 4 of the Washington Constitution provides in part:

             The legislature shall establish a system of county government, which shall be uniform throughout the state except as hereinafter provided, and by general laws shall provide for township organization, under which any county may organize whenever a majority of the qualified electors of such county voting at a general election shall so determine; and whenever a county shall adopt township organizations, the assessment and collection of the revenue shall be made, and the business of such county and the local affairs of the several townships therein, shall be managed and transacted in the manner prescribed by such general law.

             Any county may frame a "Home Rule" charter . . . .

 (Emphasis Added.)

             Article 11, section 5 of the Washington Constitution provides:

             The legislature, by general and uniform laws, shall provide for the election in the several counties of boards of county commissioners, sheriffs, county clerks, treasurers, prosecuting attorneys and other county, township or precinct and district officers, as public  [[Orig. Op. Page 5]] convenience may require, and shall prescribe their duties, and fix their terms of office:  PROVIDED, That the legislature may, by general laws, classify the counties by population and provide for the election in certain classes of counties certain officers who shall exercise the powers and perform the duties of two or more officers.  It shall regulate the compensation of all such officers, in proportion to their duties, and for that purpose may classify the counties by population:  PROVIDED, That it may delegate to the legislative authority of the counties the right to prescribe the salaries of its own members and the salaries of other county officers.  And it shall provide for the strict accountability of such officers for all fees which may be collected by them and for all public moneys which may be paid to them, or officially come into their possession.

 (Emphasis Added.)

             As you are aware, your question is virtually identical to one posed to this office in 1979 and answered in AGLO 1979 No. 8.  At that time, this office was asked to assess the constitutionality of House Bill 75, 46th Legislature (1979), which would have permitted the voters of any noncharter county to increase the number of county commissioners from three to five.  This office opined that, in all probability, the proposed legislation was unconstitutional.  In reaching that conclusion, we examined (among other things) the proposed legislation, the above constitutional provisions, State ex rel. Maulsby v. Fleming, 88 Wash. 583, 153 P. 347 (1915),1/ and Coulter v. Pool, 187 Cal. 181, 201 P. 120 (1921), which was decided under provisions of the California Constitution of 1879, in all material respects identical to our own.  It was the conclusion of this office that voter involvement in determining the number of county commissioners rendered the proposed legislation  [[Orig. Op. Page 6]] unconstitutional because it might lead to a "crazy quilt" system of county government, not uniform as mandated by the Constitution.2/

             That opinion, however, expressly left open the question of whether the number of county commissioners could constitutionally vary based on population of the counties.

             It may be helpful to first remind ourselves of the purpose of the uniformity requirement in the Washington Constitution and other state constitutions.  Article 11, section 4 was intended to preclude local, private, or special legislation.  Thus, laws are to apply uniformly, not exclusively to any particular county.3/

             But  [[Orig. Op. Page 7]] the problem lies in determining whether a particular statute is uniform.

                         The meaning of "system" and "uniformity" was specifically addressed inCoulter, in which the California Supreme Court stated:

             The word "system," as employed in the Constitution, means an organized plan or scheme in keeping with which the constituent parts thereof are rendered similar and are connected and combined into one complete, harmonious whole, and it necessarily imports both a unity of purpose and entirety of operation. . . .  As previously indicated, uniformity means consistency, resemblance, sameness, a conformity to one pattern . . . .  And therefore the constitutional mandate to establish a uniform system of county government throughout the state means one system applicable alike in all its parts and continuously operating equally in all of the counties of the state.

 Coulter, 201 P. at 25.  (Citations omitted.)4/

             The only material difference between House Bill 75, which was the subject of AGLO 1979 No. 8 and Engrossed Substitute Senate Bill 5020, which is the subject of your inquiry, is that the latter permits voters only in noncharter counties with populations of 210,000 or more to determine whether the county is to have five commissioners; the former permitted such a choice in any noncharter county.  In our opinion, this change does not cure the problem.

             Both bills contain the flaw of leaving the determination of how many commissioners the county will have up to the voters within  [[Orig. Op. Page 8]] the county.  The voters in any one or more counties may choose not to invoke the five‑member option and thus create an exception to the general and uniform system of state government.  While Engrossed Substitute Senate Bill 5020 purports to classify counties by population for the purpose of setting the number of commissioners, the involvement of voters can lead to nonuniformity among counties in the same class.

             In revisiting this issue, however, we should note that the answer is by no means obvious.  In fact, the case law around the country is not consistent.  For example, in Wisconsin, one case and two Attorney General opinions are consistent with our 1979 opinion, while a more recent case is not.  Compare State ex rel. Peck v. Riordan, 24 Wis. 484 (1869) and 50 OAG 10 (1961) and 63 OAG 105 (1974) with State ex rel. Wolf v. Town of Lisbon, 75 Wis.2d 152, 248 N.W.2d 450 (1977).5/ In Nevada, the courts have consistently upheld laws mandatorily classifying counties by population.  See,County of Clark v. Las Vegas, 97 Nev. 260, 628 P.2d 1120 (1981).  However, a Florida case,McConihe v. State ex rel. McMurray, 17 Fla. 238, 269-70 (1879) seems to be consistent with our earlier opinion.

             We remain persuaded, as we were with regard to House Bill 75 in 1979, that more likely than not Engrossed Substitute Senate Bill 5020 is unconstitutional as drafted.  As in 1979, we leave open the question whether the Legislature itself, without providing for any local option, could vary the number of commissioners in noncharter counties on factors such as population.

             We trust the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General

NANCY THYGESEN DAY
Assistant Attorney General