SNOHOMISH COUNTY CHARTER REVIEW COMMISSION AGENDA ITEM 2016-16
Reduce Residency Requirement for Holding County Office
March 23, 2016
Estimated Presentation Time:
1) Snohomish County Charter
1) Qualifications for Elective Office
RECOMMENDATION: The Commission should discuss Charter Amendment Proposal 2016-13 Reduce Residency requirement for Holding County Office. If the Commission wishes to move forward with the proposal, the Commission should direct staff to prepare a draft proposition.
At the February 17, 2016 meeting of the Commission, the Commission decided to move forward with further analysis and discussion of Charter Amendment Proposal 2016-13 Reduce Residency requirement for Holding County Office. The proposal was initially proposed by Vice Chair Terwilliger.
The Charter requires all office holders to be a resident of the County for three years “ immediately prior to filing for or appointment to office."
A question was raised whether the requirements that officers bebe county residents for the three years immediately prior to filing for election or appointment to office is unconstitutional. The Commission’s attorney’s short answer to this question is that numerous cases from across the country have found durational residency requirements in the elections context to violate constitutional equal protection guarantees, particularly local candidacy requirements that exceed one year, but Washington cases suggest that such requirements will be upheld if sufficient government interests can be identified to support them.
Question for Discussion:
Does the Commission wish to change the residency requirement for appointment or election for Snohomish County offices?
An abbreviated legal analysis on the question posed by Vice Chair Terwilliger is attached to this memo.
Supporters of residency requirements argues that office holders must be immersed in their community to represent it. Other arguments include the need for voters to have adequate time to assess the candidates, and prevent carpet bagging.1
1 Michael J. Pitts. 2016. “Against Residency Requirements.” University of Chicago Legal Forum.
Opponents of residency requirements generally argue that residency requirements reduce the choice of voters. The U.S. Constitution does not contain district residency requirements for serving as a member of Congress.
King County requires all office holders to be 21.
The Commission add this item to a subsequent agenda for discussion.
Section 4.30 Qualifications — Limitations
Each county official holding an elective office shall be, at the time of appointment or election and at all times while holding office, a citizen of the United States over the age of twenty- one, a county resident for the three years immediately prior to filing for or appointment to office, and a registered voter of the count No person shall be eligible to be elected to more than three consecutive terms for any office For the purposes of this section, different positions on the county council shall not be considered different offices.
For the reasons stated below, your first question can be answered in the negative. In answer to your second question, numerous cases from across the country have found durational residency requirements in the elections context to violate constitutional equal protection guarantees, particularl y local candidacy requirements that exceed one year, but Washington cases suggest that such requirements will be upheld if sufficient governmental interests can be identified to support them . Additional analysis can be provided if needed by the Commission.
Charter Section 4.30 currently states, in its entirety:
Section 4.30 Qualifications - Limitations
Each county official holding an elective office shall be, at the tin1e of appointment or election and at all times while holding office, a citizen of the United States over the age of twenty-one, a county resident for the three years immediately prior to filing for or appointment to office, and a registered voter of the county. No person shall be eligible to be elected to more than three consecutive full terms for any office. For the purposes of this section, different positions on the county council shall not be considered different offices.
The age and residency requirements of this section exceed those of most Washington charter counties. Charter counties other than King County require, either explicitly or through operation oflaw, that candidates for elective office be at least 18 years old. King County requires that candidates be 21 by the time of appointment or election. King County Charter, Sec. 630.1 Our research has not revealed any other Washington charter county that imposes a three-year durational residency requirement for elective office.
Your request presents the threshold issue of whether state law dictates the qualifications for elective offices in counties that have adopted home rule charters. Article XI, Section 4, of the state Constitution provides for the creation of charter counties. That section states, in part, that "[a]ny county may frame a "Home Rule" charter for its own government subject to the Constitution and laws of this state ...." (Emphasis added.) Eligibility for elective office is broadly addressed in RCW 42.04.020:
Eligibility to hold office.
That no person shall be competent to qualify for or hold any elective public office within the state of Washington, or any county, district, precinct, school district, municipal corporation or other district or political subdivision, unless he or she be a citizen of the United States and state of Washington and an elector of such county, district, precinct, school district, municipality or other district or political subdivision.
The meaning of "elector" is provided by Article VI, Section 1. Under that section, "all persons of the age of eighteen years or older" who are citizens and "have lived in the state, county, and precinct for 30 days immediately preceding the election at which they offer to vote" are entitled to vote unless disqualified under Article VI, Section 3, which disqualifies certain persons who have been convicted of "infamous" crimes or declared incompetent.
These provisions, taken together, require that candidates for elective office be at least 18 years old and have resided in the state, county, and precinct for at least 30 days. These requirements apply as a matter of law to counties whose charters do not specify age or residency requirements.
In State ex rel. Griffiths v. Superior Court, 177 Wash. 619, 33 P.2d 94 (1934), the Washington Supreme Court upheld a City of Seattle charter provision that barred Seattle City Council members from holding any other federal, state, county, or municipal office. The challenger argued, among other things, that the city charter provision was invalid
because it conflicted with a state constitutional provision that authorized the adoption of city charters under general laws and a statute that listed only citizenship and status as an elector as qualification s for election to a city council. The Court stated:
The only attack made by the relator upon the charter is that it purports to superadd certain qualifications necessary for elective officers to 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 requi rements 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. Section 9929 merely provides that no person shall be competent to hold office unless he possesses certain qualifications. It does not say that no other requirement s shall be prescribed , nor does it say that the political subdivision therein named may not impose restrictions not inconsistent with the statute.
Id. at 623-24. In short, the Court held that the statute "fixes a minimum of qualification beyond which its political subdivisions may not go" and does not say that other qualifications may not be required. Id. This analysis was subsequently adopted by the Attorney General in responding to an inquiry regarding the ability of cities, towns and counties to impose term limits. AGO 1991 No. 22. Compare, Gerberding v. Munro, 134 Wn.2d 188, 949 P.2d 1366 (1998) (constitutional qualifications for state office exclusive).
This conclusion, that additional qualifications can be imposed by county charter, is consistent with basic principles that govern the activities of Washington charter counties. Generally speaking, the actions of home rule charter counties created under Article XI, Section 4, are valid so long as they do not contravene a statute or other provision of the state constitution. King County Council v. Public Disclo sure Comm'n, 93 Wn.2d 559, 562-63, 611 P.2d 1227 (1980). Charter counties thus "have legislative powers analogous to those of the state,'' except as expressly or impliedly limited by state law. AGO 2003 No. 11 at 3 (citing Winkenwerder v. City of Yakima, 52 Wn.2d 617,
622, 328 P.2d 873 (1958). See also State ex rel. Carrol v. King County, 78 Wn.2d 452, 474 P.2d 877 (1970) (upholding local election schedule).
It therefore appears, in answer to your first question, that the requirement of Charter Sec. 4.30 that officers be over the age of 21 at the time of appointment or election to office does not conflict with state laws providing for establishment of charter counties.
Your second question implicates a variety of state and federal constitutional principles that bear on the exercise of individual rights, including the rights of suffrage, equal protection of the laws, and right to travel. Because you have not asked for a comprehensive analysis of potential constitutional challenges, the following comments
should be regarded as summary in nature. Additional or more focused analysis can be provided if needed by the Commission.
In Lawrence v. Issaquah, 84 Wn.2d 146, 524 P.2d 1347 (1974), the Washington Supreme Court heard an appeal seeking to compel the City of Issaquah, along with its Mayor and City Council, to seat the plaintiff as a Councilman after having been elected to that office. The City Council had resolved by oral motion that the plaintiff was ineligible for office for failure to comply with the one-year durational residency requirement applicable to noncharter code cities under RCW 35A.12.030. The appellant argued that the requirement , which called for residence in the city "for a period of at least one year next preceding his election," was unconstitutional for violation of his right to equal protection, in that it affords the right to hold office to others who have resided in the City for one year or more, and of his right to travel.
The court in Lawrence had little difficulty rejecting the appeal. Citing Sorenson v. Bellingham, 80 Wn.2d 547, 496 P.2d 512 (1972), and Dunn v. Blumstein, 405 U.S.
330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), two cases that invalidated requirements imposed on the right to vote, for the proposition that "a restriction placed upon a qualification for state office was unconstitutional.. .unless there was a compelling state interest" to support it, the majority held that the statutory one-year residency requirement was justified by a compelling state interest. That interest, articulated by the trial judge in Chimento v. Stark, 353 F. Supp 1211 (D.N.H. 1973), aff'd. 414 U.S. 802, 94 S.Ct. 125, 38 L.Ed.2d 39 (1973), was quoted by the Court:
We conclude that the residency requirement of the New Hampshire Constitution does promote legitimate state interests. It ensures that the chief executive officer of New Hampshire is exposed to the problems, needs, and desires of the people whom he is to govern, and it also gives the people of New Hampshire a chance to observe him and gain firsthand knowledge about his habits and character. While the length of the residency requirement may approach the constitutional limit, it is not unreasonable in relation to its objective. It does not seriously impair the participation of the plaintiff in the election process and has only a negligible impact on the voters' right to have a meaningful choice of candidates for Governor. If the residency requirement for Governor is to be eliminated, it should be accomplished by the voters through the constitutional amending process. We hold, therefore, that Part Second, Article 42, of the New Hampshire Constitution is not violative of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.
Lawrence, supra at 150 (emphasis in original). Chimento involved a seven-year residency requirement for the office of Governor. Another New Hampshire case upheld a seven-year residency requirement for the office of state senator against a challenge premised on rights of both candidates and voters, Sununu v. Stark, 383 F.
(D.N.H. 1974), aff'd. 420 U.S. 958, 95 S.Ct. 1346, 43 L.Ed.2d 435 (1975). Both cases
were summarily affirmed by the United States Supreme Court.
In reaching its decision the Supreme Court in Lawrence noted that residency requirements do not lend themselves to a one size fits all approach:
We recognize from this holding that a residential requirement must be reasonable and that the same residential requirement for the office of city councilman of Issaquah as for the office of Governor in New Hampshire would be unreasonable and would exceed constitutional limitations. We are satisfied, however, that the residential requirem ent of 1 year for the office of city councilman, as in the instant case, is not an unreasonable limitation to fulfill the compelling state interest of affording the candidate for that office the opportunity to be exposed to the needs and problems of the people of Issaquah, and at the same time to afford the people of Issaquah the opportunity to observe the candidate for city council and gain firsthand knowledge about his or her habits and character.
Lawrence, supra at 150.
The Washington Court of Appeals, Division Two, considered a challenge to the five-year durational residency requirement for the election of freeholders contained in Article XI, Section 4, of the state Constitution in Fischnaller v. Thurston County, 21 Wn. App. 280, 584 P.2d 483 (1978), review denied 91 Wn.2d 1013 (1979). That court applied the compelling state interest test "[s]olely for the purpose of this decision," but noted with approval that the concurring opinion in Lawrence had suggested that "the true constitutional test is not that of a compelling state interest, but rather of legitimate state interest." Id. at 287 (emphasis in original). The court found a compelling state interest based on the "highly significant" and independent responsibilities exercised by freeholders in fashioning the fundamental framework for a local government. The court also distinguished freeholders from other local officials whom it described as selected within an existing framework of established laws and procedures, "surrounded by legal checks and balances ," and "having the aid of experienced staff people." Id. at 289.
On the other hand, there have been numerous cases in other jurisdictions where durational residency requirements for public office have not fared as well. This has generally followed in the wake of the seminal United States Supreme Court decision in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct.2d 1322, 22 L.Ed.2d 600 (1969), which held that a one-year waiting period for public assistance denied equal protection because the reasons offered to ju stify it were either impermissible or failed to demonstrate a compelling state interest. Id. at 627. Since durational residency requirements inherently operate against persons who have recently exercised their right to travel, there have been challenges in other contexts as well, including public employment, bar admission, divorce, tuition fee differentials, publicly funded medical care, voter registration, and entitlement to Alaska's permanent fund dividends. See, e.g., Eggert v. Seattle, 81 Wn.2d 840, 505 P.2d 801 (1973) (voiding durational residency requirement for city employment).
See generally 65 A.L.R. 3d 1048, 1053; Kalen, Durational Residency Requirements and the Equal protection Clause: Zobel v. Williams, 25 Wash. U. J.Urb. & Contemp. L, 329 at 342-45.
As illustrated by Lawrence and Fischnaller, the outcomes of these cases depend on how the courts approach the standard of review and the reasons offered to justify the restrictions, and have varied widely. There have even been different results in federal and state courts on the same facts. In Robertson v. Bartels, 890 F. Supp.2d 519 (D.N.J. 2012), a federal District Court rejected as erroneous and an unlawful collateral attack a New Jersey Supreme Court decision that purported to uphold a one-year in district residency requirement for election to the state legislature despite the longstanding existence of a federal injunction barring its enforcement. In doing so the District Court emphasized the individualized factual analysis required in this area:
Indeed, "[i]n assessing challenges to state election laws that restrict access to the ballot, [the Supreme Cowt] has not formulated a litmus-paper test for separating those restrictions that are valid from those that are invidious under the Equal Protection Clause." Clements v. Fashing, 457 U.S. 957, 963, 102 S.Ct. 2836, 73 L.Ed .2d 508 (1982) (quotation omitted). "Decision in this area of constitutional adjudication is a matter of degree, and involves a consideration of the facts and circumstances behind the law, the interests the State seeks to protect by placing restrictions on candidacy, and the nature of the interests of those who may be burdened by the restrictions." Id. (citations omitted). Accordingly, "[t]he inquiry is whether the challenged restriction unfairly or unnecessarily burdens the availability of political opportunity." Id. at 964 (quotation omitted).
Id. at 527. The court went on to find that the reasons offered in support of the restrictions were unpersuasive, and distinguished the decisions upholding the seven-year restrictions in Chimento and Sununu as applicable only to high office, which it described as "the highest elective offices in the State of New Hampshire." Id. at 523.
In Peloza v. Freas, 871 P.2d 687 (Alaska 1994), the Alaska Supreme Court invalidated at three-year residency requirement for election to the Kenai City Council. Although the case was decided using Alaska' s "sliding scale" equal protection standard, which is typically more demanding than the rational basis standard applied in equal protection cases that do not employ strict scrutiny, the court noted that for local governments the cases seem to draw a line at one year:
We are inclined to consider problematic any period longer than one year. Other juri sdictions have generally viewed with skepticism duration residency requirements of longer than one year for local
Id. at n. 8 (citations omitted).2 The court went on to illustrate how cases in this area can boil down to a judgment call:
We are not persuaded that ensuring familiarity between the electorate and candidates in a local election is sufficiently compelling to outweigh the significant burden the charter provision places on the fundamental rights at stake. And the longer the candidate has been in the community, the weaker the means-end fit becomes. Three years is an unacceptably long time to burden the right of local voters to make their own decisions.
Id. at 689.
I trust the foregoing will be of assistance.
2 It has also been said that cases in this area have trended toward invalidation of requirements that apply at the local (as opposed to state) level, particularly when adopted by local law; toward upholding durational requirements of one year or Jess; and toward disapproval "of some of the traditionally substantially longer periods required." 65 A.LR. Jd 1048 at 1054-55, 1061.