Freedom County files their case with the State Supreme Court
5/15/02 - The following has been filed in the State Supreme Court.
Please call Freedom County's chairman of the Board of County
commissioners at (425)870-6162 to have your questions answered.
II. STATEMENT OF THE CASE
This is a case about self-government. Specifically, it is a case that
tests whether the right of the People to self-government, which we know
applies at the level of city, state and nation, also applies at the
county level of government.
This action to obtain a declaratory judgment was brought by
representatives of over 9,500 verified voters who signed a petition to
secede from their existing county and to establish a new county. The
provision of the Washington Constitution most directly applicable to
this question is Article XI § 3:
No new counties shall be established which . . . [do not meet certain
population requirements]. There shall be no territory stricken from any
county unless a majority of the voters living in such territory shall
petition therefor and then only under such other conditions as may be
prescribed by a general law applicable to the whole state....
Wash. Const., Art. XI § 3 (emphasis added) (See, Appendix A).
The Legislature has failed to enact the general law specified in this
section, and the State has failed and refused to recognize Appellants'
Article XI § 3 petitions. The trial court granted summary judgment to
the Respondent County and State, thereby denying any relief on the
Article XI § 3 petitions. This direct appeal is taken because "[t]he
ultimate power to interpret, construe and enforce the constitution of
this State belongs to the judiciary," Seattle School District No. 1
v. State, 90 Wn.2d 476, 496, 585 P.2d 71 (1978), and this Court is the
pinnacle of the State Judiciary. Wash. Const., Art. IV § 1. As the
trial judge noted below:
[D]ecisions that strike at the very basic nature of an American's right
to govern oneself and govern by consent of the people . . . should be
handled by . . . the highest court in the land. In this particular land,
in the state of Washington, it's the supreme court.
B. Statement of Facts
The facts are few and largely undisputed. In order "to restore the
American principles of individual freedom and liberty for all," at
least 9,558 registered voters (as confirmed by the Secretary of State)
from within the area of the proposed new county signed petitions
withdrawing their consent to be governed by Snohomish County, and
calling for the recognition of Freedom County. CP 31 ¶ 4, 40, 49-51.
Despite the fact that Article XI § 3 permits the Legislature to place
"other conditions [on county creation] as may be prescribed by a
general law", the Legislature has failed to enact any general law
on this subject.
The voters' petitions were presented to the Legislature on April 23,
1995, with supplemental signatures submitted October 31, 1996. CP 32 ¶
7; 49-50. The Legislature sent the petitions to the Secretary of State
for examination. CP 225. The Secretary of State determined that the
number of signatures presented constitutes a majority of the number of
votes cast in the territory of the proposed new county at the last state
general election (total votes 17,477). CP 52. However, by letter dated
July 15, 1996, the Secretary of State took the position that only the
Legislature could create a new county. CP 275-77.
On January 24, 1997, Cedar County's representatives filed an action for
mandamus against the Secretary of State. CP 34 ¶ 16. That action
resulted in this Court's opinion in Cedar County Committee v. Munro, 134
Wn.2d 377, 950 P.2d 446 (1998), discussed in Section III(A)(3)(b),
At some point in 1997, Freedom County also commenced a pro se action for
"quite [sic.] title" in its own name against Snohomish County,
in Snohomish County Superior Court, Docket No. 97-2-08587-8. CP 35 ¶
20. On November 25, 1997, this action was dismissed by the trial court
for failure to state a claim upon which relief could be granted. CP
116-18. The Court of Appeals, Division One, affirmed on April 19, 1999,
relying extensively on this Court's Cedar County decision. Freedom
County v. Snohomish County, 95 Wn. App. 839, 842, 977 P.2d 612 (1999),
review denied, 139 Wn.2d 1022 (2000). This opinion clarified that the
reason for dismissal was that the trial court found that "Freedom
County did not exist as a legal entity." Id. at 841. This Court
denied review of this decision.
Appellants made several additional pro se attempts to bring the merits
of their case before a proper court, but all to no avail. Rather than
naming Freedom County as a plaintiff, Mr. Guadalupe brought a quo
warranto or mandamus original petition in this Court in his own name and
in the name of various members of the Legislature. CP 121. This was
dismissed by the Commissioner, and this dismissal was upheld on Motion
to Modify. CP 146. Mr. Guadalupe also brought an action in the Federal
Court, Western District of Washington, against the Cedar County
Majority, various members of the House and Senate, the Attorney General
and counsel for the State, and various other State and County officials.
This, too, was dismissed. CP 278-80.
Finally able to secure counsel, a more sensible action was commenced in
Skagit County Superior Court in July, 2001, by the individuals chosen to
represent the petitioning voters, against Snohomish County and the State
of Washington, seeking declaratory and injunctive relief in support of
the view that Freedom County has met the constitutional requirements for
recognition as a county, as well as damages. CP 1-5. On September 13,
2001, this action was heard by the Hon. Michael E. Rickert, on
cross-motions for summary judgment. RP 2. On that date, the trial court
granted the State and County's Motion for Summary Judgment, and
dismissed the case. CP 179-81. Plaintiffs' timely Motion for
Reconsideration was denied on November 11, 2001, and a Notice of Appeal
to the Washington Supreme Court was filed November 27, 2001. CP 211-12,
213-14. The appeal was initially taken pro se, and then pursuant to
permission of the Commissioner, a Second Amended Statement of Grounds
for Direct Review was filed by undersigned counsel on March 19, 2002.
A. The Intent of the Framers Was Both to Limit the Legislature and to
Recognize the Voters' Right to Petition for County Creation
1. The Text of the Constitution Points Towards a Power of the Voters in
Addition to the Power of the Legislature
a. Standard for Construction
The key issue in this case is the meaning of Article XI § 3:
No new counties shall be established which shall reduce any county to a
population less than four thousand (4,000), nor shall a new county be
formed containing a less population than two thousand (2,000). There
shall be no territory stricken from any county unless a majority of the
voters living in such territory shall petition therefor and then only
under such other conditions as may be prescribed by a general law
applicable to the whole state. . . .
The standards for construing the meaning of the Constitution have long
In the interpretation of constitutional provisions, courts are required
to give effect to the intent and purpose of the framers. In 16 C.J.S.,
Constitutional Law, § 16, page 51, the rule is stated as follows:
"The fundamental purpose in construing a constitutional provision
is to ascertain and give effect to the intent of the framers and of the
people who adopted it. The court, therefore, should constantly keep in
mind the object sought to be accomplished by its adoption, and the
evils, if any, sought to be prevented or remedied. Effect should be
given to the purpose indicated by a fair interpretation of the language
used. The intent may be shown by implication as well as by express
State ex. rel. Billington v. Sinclair, 28 Wn.2d 575, 579, 183 P.2d 813
(1947). The determination of intent starts, but does not necessarily
end, with an examination of the language used. Id. at 579-80.
b. A Focus Just on Article XI § 3 Supports Finding a Power of County
Creation in the Voters
Article XI § 3 expressly addresses the process by which new counties
are formed out of existing counties, which is exactly the issue before
this Court. First, Article XI § 3 conditions county formation on
certain population minimums for both the remainder of the existing
county and the new county. Second, it establishes the requirement that
"[t]here shall be no territory stricken from any county unless a
majority of the voters living in such territory shall petition therefor
. . .." Article XI § 3 (emphasis added). These words, chosen by
the Framers to express their intent, clearly state that the voters
through their right to petition are essential participants in the
process envisioned by Article XI § 3 for the creation of new counties
out of existing counties.
However, although Article XI § 3 speaks of counties being
"established" and "formed", it does not expressly
state who is doing the establishing or formation. The only entities with
sovereign or legislative powers under the Constitution are the People,
and the Legislature. Wash. Const., Art. I § 1; Art. II § 1. There is
nothing in the text of Article XI § 3 suggesting that the power doing
the establishing is necessarily the Legislature and not the People, and
there is ample textual reason to believe that the People are included in
the power under discussion. Article XI § 3 does not mention the
Legislature by name, but only mentions "the voters". If it had
been the intention of the Framers to exclude the voters from power over
county formation, and to give that power exclusively to the Legislature,
they chose inapt language to accomplish this purpose by specifically
naming "the voters" and not the Legislature!
Presumably, the Legislature is the body empowered to add "such
other conditions as may be prescribed by a general law applicable to the
whole state" to the exercise of the power of establishing the new
county. Is it really necessary for the Legislature to impose general
conditions on the exercise of its own power? The very fact that it is
called upon to impose conditions "by general law applicable to the
whole state" suggests that the Framers knew they were creating a
power in the voters, and believed that the exercise of that power might
benefit from some legislative regulation.
c. Viewing the Constitution as a Whole Supports Finding a Power of
County Creation in the Voters
Two other provisions of the Constitution bear strongly on the textual
argument that the voters have an independent power of county creation
under Article XI § 3.
First, the Constitution expressly provides:
All political power is inherent in the people, and governments derive
their just powers from the consent of the governed, and are established
to protect and maintain individual rights.
Wash. Const., Art. I § 1 (Appendix A). It is no coincidence that this
provision was placed first in the State Constitution, just as the first
words of the United States Constitution are "We, the People . .
.." U.S. Const., Preamble. The foundation of all sovereignty in the
United States and in the State of Washington is the People.
The principle that under the constitution of this state the people are
the source of all legislative authority has always been recognized.
State ex. rel. Linn v. Superior Court for King County, 20 Wn.2d 138,
151, 146 P.2d 543 (1944). While it is true that the People have
delegated much of their sovereignty to the Legislature in the
Constitution, Amalgamated Transit Union Local 587 v. State, 142 Wn.2d
183, 238, 11 P.3d 762 (2000) (quoting, Love v. King County, 181 Wash.
462, 467, 44 P.2d 175 (1935)), that delegation goes no further than the
express language of the Constitution itself. Id. (sovereignty remains
with the People except to the extent that they have
"expressly" delegated it). In light of Article I § 1's
primacy as the first Article of the Constitution, its powerful statement
that all political power is inherent in the people, and its echoing the
Declaration of Independence's language that "governments derive
their just powers from the consent of the governed," this text
forbids the mere implication that the voters have given up their
sovereign political power over a particular topic.
It necessarily follows that the fact that Article XI § 3 does not
expressly state who has that ultimate power over county formation is not
sufficient grounds to imply that the People have reserved to themselves
none of this power. To the contrary, the limitation on Legislative power
contained in Article XI § 3 which requires a petition of the voters,
when read in light of Article I § 1, demonstrates that county creation
is not a subject over which the People delegated away all of their
The second additional relevant constitutional provision is Article II §
28(18), which provides:
The Legislature is prohibited from enacting any private or special laws
in the following cases: -
* * *
18. Changing county lines, locating or changing county seats, provided,
this shall not be construed to apply to the creation of new counties.
Wash. Const., Art. II § 28(18) (Appendix A). Thus, in a backhand sort
of way, the Constitution assumes that the Legislature can create
counties by special legislation. There is nothing in this assumption
that necessarily excludes the possibility that the voters share the
power to create a county by petition. Instead, viewed as a whole in
light of Article I § 1, Article II § 28(18), and Article XI § 3, the
constitutional scheme for county creation is a two-track system,
depending on which sovereign initiates it:
a.. Special legislation is the method by which the Legislature
initiates county formation, for which it must have approval of the
voters by petition pursuant to Article XI § 3. This approval
requirement is the limitation on the power of the Legislature mentioned
by various members of the Convention. See, Section III(A)(2), infra.
a.. Alternatively, the People themselves can initiate county
formation by petition under Article XI § 3 by virtue of their retained
power in Article I § 1 - but there is no corresponding limitation
placed upon their powers, except that they must comply with any
"conditions prescribed by general law" that may be
established. But the Legislature cannot defeat the People's power by
failing to prescribe general law conditions. See, Section III(B), infra.
2. Contemporaneous Expressions of Intent, Coupled with the Context in
Which Article XI § 3 Was Framed, Show it was Intended to Confer Real
Power on the Voters
"Courts must often resort to extrinsic sources in order to
determine the meaning of constitutional terms. . . . '[T]he public
history of the times should be consulted, and should have weight' in
giving meaning to the terms used. . . . In addition, this court has used
contemporary newspapers' accounts of the state constitutional convention
to supplement the official minutes since no verbatim record of the
convention exists." Witters v. Comm'n for the Blind, 112 Wn.2d 363,
384-85, 771 P.2d 1119 (1989) (quoting, State ex. rel. Mason Cy. Logging
Co. v. Wiley, 177 Wash. 65, 74, 31 P.2d 539 (1934), and citing State v.
Brunn, 22 Wn.2d 120, 139, 154 P.2d 826 (1945) & Yelle v. Bishop, 55
Wn.2d 286, 293, 347 P.2d 1081 (1959)) (Utter, J., dissenting).
The entire debate over county creation occurred against the background
of a recent boundary dispute over the line between Pierce and King
Counties, and therefore the debate over Article XI § 3 "became
acrimonious." Journal of the Washington State Constitutional
Convention, 1889 at 705 (Beverly Paulik Rosenow ed., 1962) (hereinafter
"Journal"). "A determined effort to change the necessary
petition signers from a majority to two-thirds or three-fifths met with
failure." Id. Indeed, the Journal contains evidence of no fewer
than nine efforts to amend the section, each of which lost, with the
sole exception of the addition of the clause pertaining to general laws
of the Legislature. Id. at 709-13.
The debate on Article XI § 3 occurred over two days, July 24 and 25,
1889. On the first day, the Committee on County, City and Township
Organization, Chaired by Mr. Stiles of Tacoma, reported out the section
in its present form, except without the language pertaining to the
addition of conditions by general law. Journal at 709; Seattle Times,
7/24 (all newspaper dates 1889), reprinted in, Contemporary Newspaper
Articles, (Appendix to Journal) (1999) (hereinafter "App.") at
2-59 col. 2; Seattle Times, 7/25, App. at 2-62 col. 1.
As soon as Section 3 was read, an amendment was offered to require a
two-thirds vote of the electors, rather than the majority petition. This
amendment failed. Spokane Falls Review, 7/25, App. at 3-34 col. 2.
Next, an amendment was offered to require the majority of voters to be
from the entire county affected, rather than just a majority of the
voters in the territory affected. Id. This amendment was based on
opposition to "the idea of allowing a small portion of the
inhabitants on the border of a county to vote themselves out of the
county." Id. In response, Mr. Stiles said that this was not a grant
of power, but merely a limitation on the Legislature, and this is the
remark recorded in the Journal, which was relied upon by the Majority in
Cedar County, supra, 134 Wn.2d at 385-86. What the Journal neglected to
record, however, is that Mr. Stiles concluded by saying:
The alarm which seems to be excited is entirely groundless. The
committee simply recommend home rule.
Spokane Falls Review, 7/25, App. at 3-34 col. 2 (emphasis added);
accord, Tacoma Daily Ledger, 7/25, App. at 4-42 col. 3. Home rule, of
course, is the process by which voters of the municipal corporation
frame their own charter for self-government. Wash. Const., Art. XI § 4
(amend. 21) (Counties); Art. XI § 10 (Cities). On this basis, the
The next proposed amendment was especially revealing of the intent of
Mr. Turner moved to strike out the sentence: "There shall be no
territory stricken from any county unless a majority of the voters
living in such territory shall petition for such division." He
explained that if the matter is to be left to the legislature the above
sentence was entirely nugatory in character. He though that the
provision should be left to the legislative committee. He thought the
legislature was the only tribunal to decide when new counties or cities
should be incorporated.
Tacoma Daily Ledger, 7/25, App. at 4-42 col. 3; accord, Tacoma Morning
Globe, 7/25, App. at 5-53 col. 2. A majority of the Framers did not
agree, and the amendment lost. Id. (both sources).
Two more proposed amendments - these dealing with population and square
mileage of the remainder of the existing county - were beaten back, and
the delegates then approved Article XI § 3 as reported by the
Committee. Tacoma Daily Ledger, 7/25, App. at 4-42 col. 3.
That night, the Seattle Times charged:
Stiles, the chairman of the committee, and a Tacoma man introduced this
section with the view of enabling Pierce county to get several townships
in King county, upon which it has long had longing eyes. In the
legislature of 1887 Pierce county came very near accomplishing this
object, and it cost King county considerable money to defeat it.
Seattle Times, 7/25, App. at 2-62 col. 1. In this charged atmosphere,
Section 3 was again taken up by the Framers on the morning of July 25th.
Just as Mr. Turner had done the previous day, Mr. Kinnear of Seattle
immediately moved to strike the key second sentence, "There shall
be no territory stricken from any county unless a majority of the voters
living in such territory shall petition for such division." Seattle
Times, 7/25, App. at 2-63 col. 1. "Kinnear argued that this was a
matter which should be left to the legislature, and that the
constitution should not interfere with it." Id.
In opposing the proposed amendment, Mr. Comegys "considered that
Whitman county should have a right to secede." Id. at 2-63 col. 2.
Then, Mr. Sullivan of Tacoma spoke against the amendment:
Mr. Sullivan of Tacoma thought it perfectly safe to leave the section
just as it stood, where it both confers a right on parties and
establishes a restriction in legislation.
Spokane Falls Review, 7/26, App. at 3-39 col. 1 (emphasis added);
accord, Journal at 712.
Responding in favor of the amendment, Seattle delegate Minor revealed
the extent of the partisan passions that day:
Mr. Minor said that he was convinced that this provision was inserted in
the middle of this section, out of sight, as far as possible, either by
some mistake or else for a vicious or selfish purpose. . . . . [H]e
thought he could see that [Tacoma] in sending their flour and provisions
. . . had a purpose, "That, like a physician, they feed us with
chloroform only to dismember us."
Spokane Falls Review, 7/26, App. at 3-39 col. 1. This remark caused
general indignation, and Mr. Minor was forced to apologize during the
afternoon session. Id. at 3-39 col. 3.
Mr. Stiles responded saying this was a simple clause that would prevent
legislative jobbery, which was taken from the California constitution.
Id. at 3-39 col. 2. After several more defenses of the honor and
integrity of the Committee, this crucial question was called to a vote,
and the amendment was defeated by a vote of between 17 to 23 ayes
(including all 6 Seattle delegates), against 42 to 54 nays (including
all 4 Tacoma delegates). Seattle Times, 7/25, App. at 2-64 col. 1;
Tacoma Daily Ledger, 7/26, App. at 4-47 col. 1.
At this point, Mr. Moore of Spokane proposed the one amendment that
passed: adding to the disputed second sentence the phrase, "and
then only under such other conditions as shall be prescribed by a
general law applicable to the whole state." Seattle Times, 7/25,
App. at 2-64 col. 2. With almost no discussion other than Mr. Stiles'
remark that he would not oppose this in order to show his "good
faith", this amendment passed. Spokane Falls Review, 7/26, App. at
3-39 col. 3.
Thereafter, two amendments aimed at increasing the majority of voters
called for under Article XI § 3 to two-thirds and even three-fourths
supermajorities were defeated. Seattle Times, 7/25, App. at 2-64 col. 2.
Then, Tibbets took a last stab at Section 3 by moving to strike out
everything after the first sentence, which would have defeated the
voters' petition power under the second sentence. There is no reported
debate, and this proposal failed. Id.
The result of all this was that the proponents of ensuring that the
voters were to play an indispensable role in county formation won out
over determined opposition. This was recognized by the Seattle Times in
its editorial of July 26, 1889:
* * *
The clause objected to [Article XI § 3], provided in effect that when a
majority of the voters of any precinct of any county desire to secede
therefrom, all that is necessary is to petition the legislature to that
end. In other words, it permitted the disintegration of a county, by
successive lopping off of its precincts, upon a mere petition of the
majority of the voters in such precinct.
* * *
The viciousness and danger of this obnoxious clause were partly
eliminated by the adoption of an amendment thereto, proposed by Mr.
Moore of Spokane Falls, which provides that such secession . . . shall
be made only on "such other conditions as shall be prescribed by a
general law applicable to the whole state." The matter then stands
thus: The legislature may pass a general law under which a majority of
voters in any precinct, on petition, may secede from any county to which
they have been assigned by law, and attach themselves to any other
county as the whim may seize them. The effect of Mr. Moore's amendment
is, not to deny the right of the majority in any precinct to secede from
a county, but to place all precincts upon the same footing with respect
to precedent conditions. The clause, as amended, still recognizes the
right of secession, but provides that all must go through the same gate
to achieve the end sought.
Seattle Times, 7/26, App. at 2-68 (emphasis added).
Surely the charge of "Secession" was an emotional one, with
the Civil War being the defining event of the youth of many of those who
served as delegates. Yet there is no record of any delegate standing up
in the convention to refute these charges. The "public history of
the times" shows that, viewed in the broader context of the Pierce
- King County dispute, the second sentence of Article XI § 3 was seen
as a limitation on legislative power by empowering the voters themselves
to decide when to stay and when to go. The opponents of the second
sentence saw this clearly, repeatedly seeking to strike it in order to
leave county creation wholly within the power of the Legislature. They
failed. That failure must have some meaning. The decisions of this Court
to date which state that "the division of counties . . . is solely
a legislative function," Douglas County v. Grant County, 72 Wash.
324, 332, 130 P. 366 (1913), or that "[t]he counties are but 'local
subdivisions of the state and are created by the sovereign power of the
state without the consent or concurrent action of the people who inhabit
them,'" State v. Vantage Bridge Co., 134 Wash. 568, 572, 236 P. 280
(1925) (quoting, State ex. rel. Board of County Comm'rs of Pierce County
v. Clausen, 95 Wash. 214, 222, 163 P. 744 (1917)), simply fail to
address Washington's unique constitutional history, and therefore they
cannot be reconciled with our Constitution.
3. Washington's Case Law on the Meaning of Article XI § 3 Fails to
Focus on Our Constitution
a. Cases Prior to Cedar County
Article XI § 3 first came to this Court's attention in Farquharson v.
Yeargin, 24 Wash. 549, 64 P. 717 (1901), an action to enjoin the
issuance of county bonds by Ferry County, a county that had been created
out of Stevens County by an act of the Legislature. Id. at 550. The
Appellant argued that the bond was illegal because it was not shown in
the records of the House or Senate that the new county had a population
of 2,000, as required by Article XI § 3. Id. at 552. The trial court
denied the injunction, and this Court affirmed on the grounds that it
presumed that the predicate facts allowing creation of a county by
special act were shown to the Legislature, absent an affirmative
contrary showing. Id. at 553-54. In the course of this ruling, without
citing any authority, this Court stated that "[t]he creation of a
new county is an exercise of legislative power subject to the
limitations referred to." Id. at 553. This remark does not
necessarily preclude the possibility of concurrent power in the voters,
and is obviously an off-hand dictum.
The clause next came before the Court in State ex. rel. Chehalis County
v. Superior Court of Pacific County, 47 Wash. 453, 92 P. 345 (1907),
which was an application for a writ of prohibition against county courts
neighboring the newly-created Grays Harbor County to preclude them from
examining voter petitions. Id. at 460-61. In this case, the Legislature
tried to create Grays Harbor County by special legislation. Section 2 of
the act provided that any qualified voter within the territory of the
proposed new county could submit a petition to the Governor within three
months, showing signature of a majority of the voters within the new
county, and Section 3 then required the Governor to transmit the
petition to the superior judge of the next nearest county for
verification of signatures, and of compliance with the population
requirements of Article XI § 3. Id. at 460-61. The Petitioner urged
that the bill could not be passed until the Legislature ascertained the
population, and this Court sustained that argument based on the language
of Farquharson which stated that "[b]efore" the Legislature's
limited power could be exercised, the predicate facts of population must
be made to appear. Id. at 463-64 (quoting, Farquharson v. Yeargin,
supra, 24 Wash. at 553). Therefore, because the Legislature had
manifestly not ascertained the predicate facts before proceeding, the
act was invalid. Chehalis County, supra, 47 Wash. at 463.
Since the population requirement is an absolute predicate to Legislative
action, the voter-petition requirement must be too. Farquharson, supra.
The Court in Chehalis County recognized the importance of the people's
The creation of a new county from the territory of another is an
important political event, and of special interest to all of the
inhabitants of that territory, and each and all have the right to insist
that, in the exercise of its power in that direction, the Legislature
shall comply with the mandates of the people as given in the
Constitution . . ..
Chehalis County, supra, 47 Wash. at 464-65.
In Douglas County v. Grant County, supra, 72 Wash. 324, the Court for
the first time seriously strayed from the intent of the Framers, and it
did so in a case having nothing to do with county formation, but which
instead involved the question of whether a new county created out of an
existing county is entitled to part of the assets (as opposed to
obligated to pay part of the liabilities) of the existing county. Id. at
327. The Court held that it was not, because the act creating Grant
county made no provision for an apportionment of assets. Id. at 331-32.
To bolster this argument, the Court stated:
That the division of counties and the distribution of property and
assets is solely a legislative function, and that legislation to provide
for such apportionment is necessary, see 11 Cyc. 357, and cases there
Id. at 332. This point was expanded upon a few years later, in State ex.
rel. Board of County Comm'rs v. Clausen, supra, 95 Wash. 214, which
again did not deal with county formation, but instead involved the
question of whether the State by general law could impose tax burdens or
indebtedness upon counties in the public interest (here, as a matter of
wartime emergency). Id. at 217-20, 231. In Clausen, this Court took the
view that counties are merely local subdivisions of the state
"created by the sovereign power of the state of its own sovereign
will, without any necessary particular solicitation, consent, or
concurrent action by the people who inhabit them." Id. at 222. This
case involved a number of State Constitutional provisions, but Article
XI § 3 was not one of them. Id. at 221-22. As authority for this
proposition, the Court in Clausen cited to several out-of-state cases,
and an encyclopedia on Municipal Corporations. But apparently its
attention was never drawn to Article XI § 3, for if it had been, it
could not possibly have stated that no consent of the people is required
The obvious flaw in this line of cases (and those that simply parrot
them in later years) is that they are not based on an analysis of the
particular terms of the Washington Constitution. Instead, they are based
on authority from Ohio, Illinois, Maryland, West Virginia, Arkansas, New
York, Nevada, Montana, Virginia and Wyoming, all of which had material
differences in their constitutional scheme for county creation at the
time they arose. Because the operative constitutional provisions that
the underlying authority considered were not comparable to Article XI §
3, these cases tell us nothing reliable about how the Framers intended
Article XI § 3 to operate. The doctrine established by these cases is
no better than a house built on quicksand.
There is also a strong policy reason why these cases should be
revisited. "Constitutions are designed to endure through the years,
and constitutional provisions should be interpreted to meet and cover
changing conditions of social and economic life." Linn v. Superior
Court, supra, 20 Wn.2d at 145. These older cases are based on an
outdated view of the County as an administrator of only a very few basic
governmental programs, such as elections, roads, land records, and the
county courts. But the modern county administers a wide range of social,
economic, and environmental programs vitally touching the lives,
liberties, and property interests of its citizens. County codes are now
vast repositories of detailed regulation. It makes no sense to exempt
these powerful and pervasive governing bodies from the most fundamental
principle upon which this Nation was founded:
. . . That to secure these Rights [to Life, Liberty and the Pursuit of
Happiness], Governments are instituted among Men, deriving their just
Powers from the Consent of the Governed, that whenever any Form of
Government becomes destructive of these Ends, it is the Right of the
People to alter or to abolish it, and to institute new Government . . ..
Declaration of Independence (1776), reprinted in, I M. Urofsky & P.
Finkelman, eds., Documents of American Constitutional and Legal History
at 55 (2d ed. 2002).
b. Cedar County v. Munro Contains Faulty Dicta, and it Should be Limited
In Cedar County v. Munro, supra, 134 Wn.2d 377, proponents of a new
county to be carved out of existing King County submitted petitions to
the Legislature containing the signatures of more than 50% of the number
of registered voters who voted in the preceding state election, and
demanded certification of these petitions as an "election" by
the Secretary of State. Id. at 379-80. When the Secretary refused, they
brought an action of mandamus, and this Court disposed of all issues by
holding that the Secretary of State had no mandatory duty to perform
because there was no "election" and because the Secretary has
no duties whatsoever in the process of county formation. Id. at 381-82.
Having disposed of the entire request for mandamus relief put forth by
the Appellants, the Court nonetheless went forward to consider
additional issues, even as it recognized that it was "not compelled
by our holding to do so . . .." Id. at 382. Inasmuch as the issue
on mandamus was the extent of the Secretary's duty to act imposed by
law, without regard to any discretion, id. at 380-81, the further
ruminations of the Cedar County Majority on the merits of the underlying
right of the People to petition for county formation were obiter dictum.
As stated by Black's, an obiter dictum is:
A remark made, or opinion expressed, by a judge, in his decision upon a
cause, . . . incidentally or collaterally, and not directly upon the
question before him, or upon a point not necessarily involved in the
determination of the cause . . .. Such are not binding as precedent.
Black's Law Dictionary at 1072 (6th ed. 1990) (emphasis added).
At least three members of this Court viewed the Cedar County Majority's
foray into additional issues to be not merely dicta, but also an
unwarranted "advisory opinion." Cedar County v. Munro, supra,
134 Wn.2d at 387 (Alexander, J., concurring).
Nonetheless, the Majority took its foray. The Cedar County Majority
[Article XI § 3] does not state that a county shall be created if
certain conditions are met; it mandates that no new counties can be
created unless the conditions are met. The plain language of the
constitution prohibits the Legislature from exercising its discretion to
create a new county unless specified requirements are fulfilled. It does
not mention a ministerial duty to create a county nor provide a right by
citizens to form a county.
Id. at 385. Thus, according to the Cedar County Majority: (1) the voters
have no affirmative power to create a county; and (2) the Constitutional
provision is not self-executing, and thus creates no duty on the part of
the Legislature to recognize the voters' petition. Both these points are
The argument that Article XI § 3, makes no affirmative grant of power
to the voters, is based on the negative phrasing of the article. It is
true that the negative language the Framers used can be construed as a
limitation on the power of the legislature, by which it cannot act
unless the People "petition therefor". But it can also be
construed as a grant of power to the People to "petition therefor".
It is clear from contemporaneous debates and reactions to the second
sentence of Article XI § 3, that the Framers disagreed among
themselves, some intending one, some intending both, and others fearing
one or the other or both. The reality is that the intensity of debate
and contemporaneous interpretations of the purpose of the clause and its
effect show that the Framers saw little practical distinction between
the two interpretations. They slipped easily back and forth from one
view to the other. These were not metaphysicians; they were practical
men. Immediately after saying that Article XI § 3 was a
"limitation" on the legislature, Mr. Stiles said that it was
intended to guarantee "home rule". Mr. Sullivan thought that
it both conferred a right and imposed a limitation.
Another problem with reliance on the negative phrasing of Article XI §
3 is that nowhere in the Constitution is there any grant of affirmative
power to form counties to anyone - the People or the Legislature - yet
we know that this power must lie somewhere. The only other potential
source of Legislative power over county creation is found in Article II
§ 28(18), and it is even more negative in phrasing than Article XI §
3. See, p. 11-12, supra. Therefore, the fact that Article XI § 3 is
phrased in the negative is insufficient grounds to deny that it, along
with Article I § 1, reserves concurrent power of county creation to the
The argument that the power to create counties lies solely in the
Legislature is not based on any affirmative grant of power to the
Legislature in the Constitution, because there is none. Instead, it is
based on the maxim that "the state constitution is a limitation
upon the power of the legislature rather than a grant thereof. Insofar
as legislative power is not limited by the constitution it is
unrestrained." Cedar County v. Munro, supra, 134 Wn.2d at 386
(quoting, Moses Lake Sch. Dist. 161 v. Big Bend Community College, 81
Wn.2d 551, 555, 503 P.2d 86 (1972), appeal dismissed, 412 U.S. 934
(1973)). We agree that the State Constitution is a limitation on
legislative power - but that is not the whole story. The predicate
condition for "unrestrained" legislative power has not been
met on the question of county formation. Everyone - including the Cedar
County Majority - agrees that Legislative power over county formation
has been limited by Article XI § 3. Cedar County v. Munro, supra, 134
Wn.2d at 385-86. As has been established since Farquharson, Article XI
§ 3 expressly limits legislative power over county formation not merely
by imposing conditions about population, but also by imposing the
absolute, prior condition of petition by the voters. Farquharson, supra,
24 Wash. at 553. Therefore, Legislative power on this subject is
subordinate to People power.
Assuming that negatively-phrased provisions are not automatically
disqualified as potential sources of power to the supreme sovereign
People, or to its agent, the Legislature, then we have to take a second
look at Article XI § 3. As we have seen, on its face Article XI § 3 is
more easily read as a grant of power over this subject to the People,
than as a grant of power to the Legislature, since it provides for
county formation upon petition of the "voters" subject only to
"such other conditions as may be prescribed by a general law
applicable to the whole state . . .."
"The people, under our system of government, are the source of all
governmental power . . .." Martin v. Tollefson, 24 Wn.2d 211, 216,
163 P.2d 594 (1945). In a dynamic system in which the People are the
ultimate sovereigns, and any power held by the Legislature is merely
delegated power, a limitation on the Legislature operates as a grant to
(or reservation by) the People. "[W]here a direct conflict arises
between the general authority of the legislature and the reserved powers
of the electorate, the difference between a 'grant' and a 'limitation'
may not be so distinct." Spokane Arcades, Inc. v. Eikenberry, 544
F. Supp. 1034, 1048 n.10 (E.D. Wa. 1982), rev'd on other grnds. sub.
nom., J.R. Distributors, Inc. v. Eikenberry, 725 F.2d 482 (9th Cir.
1984), rev'd on other grnds. sub. nom., Brockett v. Spokane Arcades,
Inc., 472 U.S. 491, 105 S. Ct. 2794, 86 L. Ed.2d 394 (1985).
[W[here a conflict arises between the source of political authority (the
people) and that body to which such power has been delegated (the
legislature), there is no rule of reason which dictates that derivative
powers be accorded weight over the primary source of such authority.
Id. at 1048.
The "limitation / grant" dichotomy that drove the Cedar County
dictum is one of those unfortunate verbal formulas that tend to trap
thought, and hide true meaning. The Framers recognized this. By fighting
hard over whether to limit the Legislature with the majority voter
petition requirement, they knew they were fighting over how much power
the People would have. By defeating the repeated efforts to strike the
second sentence, they believed that the People had won.
4. Summary of the Intent of the Framers
The only exegesis of Article XI § 3 which is true to its text, to the
Constitution as a whole, to the intent of the Framers, to the political
history of the times, and to the reality of the distribution of power in
a State founded on the consent of the governed, is one under which the
voters and the Legislature share the power of county creation. The only
limitation on the People's right of county creation, aside from the
population and majority petition requirements of Article XI § 3, are
the "conditions prescribed by general law" imposed by Mr.
Moore's amendment. We now turn to the question of whether the
Legislature can frustrate the People's power by failing to enact the
general law contemplated by the Constitution.
B. Article XI § 3's Grant of Power to the Voters Cannot be Defeated by
the Legislature's Failure to Enact a General Law
Article XI § 3 permits territory to be stricken from an existing county
to create a new county upon meeting the population requirements, and
upon petition of a majority of the voters in the new territory,
"and then only under such other conditions as may be prescribed by
a general law applicable to the whole state. . . ." The use of the
word "may" means that it is discretionary with the Legislature
whether or not it to prescribe additional conditions on the voters'
right by general legislation. To date, it has not chosen to do so. But
that decision does not alter the fact that the rest of Article XI § 3
is mandatory, self-executing, and effective without legislative action.
Specifically, the provision on county creation by majority voter
petition cannot be defeated by legislative inaction.
The Washington Constitution itself saves the Courts the trouble of
determining whether its provisions are mandatory:
The provisions of this Constitution are mandatory, unless by express
words they are declared to be otherwise.
Wash. Const., Art. I § 29 (emphasis added). Since there is no express
language declaring that the majority petition provision of Article XI §
3 is discretionary, it follows that it is mandatory and binding without
any further action by the Legislature.
Mandatory constitutional provisions are binding on all departments of
the government. Long usage can neither repeal, nor justify the violation
of, such provisions, and disobedience or evasion is not permissible,
even though the best interests of the public might apparently be
promoted in some respects.
Billington v. Sinclair, supra, 28 Wn.2d at 581-82. It is not for this
Court to consider whether it believes the public interest is better
served by a paternalistic system under which the Legislature has veto
power over the will of the majority. This Court has but one duty in a
case of this kind: to give effect to the intent of the Framers, as
expressed in the language they chose. Seattle School District v. State,
supra, 90 Wn.2d at 496, 500, 504-06.
As this Court stated long ago:
"A constitutional provision . . . may be said to be self-executing
if it supplies a sufficient rule by means of which the right given may
be enjoyed and protected, or the duty imposed may be enforced; and it is
not self-executing when it merely indicates principles, without laying
down rules by means of which those principles may be given the force of
Anderson v. Whatcom County, 15 Wash. 47, 51, 45 P. 665 (1896) (quoting,
Cooley, Constitutional Limitations at 100). Constitutional prohibitions
are generally deemed to be self-executing. See, e.g., State ex. rel.
Schillberg v. Safeway Stores, Inc., 75 Wn.2d 339, 344, 450 P.2d 949
(1969) (Art. II § 24 prohibiting lottery self-executing); State ex. rel.
Port of Seattle v. Wardall, 107 Wash. 606, 611, 183 P.2d 67 (1919) (Art.
II § 25 and Art. XI § 8, which prohibit granting extra compensation or
changing the salary of public contractors or officers during their
contract or term, are self-executing). On the other hand, constitutional
provisions are generally not held to be self-executing when the Framers
provided that the Legislature "shall" enact legislation to
give the particular right in question effect. E.g., Roberts v. Millikin,
200 Wash. 60, 73, 93 P.2d 393 (1939) (Art. I § 34 (amend. 8) not
self-executing: "The legislature shall pass the necessary laws to
carry out the provisions of section thirty-three of this article and to
facilitate its operation and effect without delay."); Tellevik v.
Real Property 6717 100th Street S.W., 83 Wn. App. 366, 378, 921 P.2d
1088 (1996), rev. denied, 133 Wn.2d 1029 (1998) (Art. XIX § 1 not
self-executing: "The legislature shall protect by law from forced
sale a certain portion of the homestead and other property of all heads
of families."). Finally, "[a]ll constitutional provisions are
self-executing to the extent that they void all action taken in
violation of them and preclude enforcement of any statute violating
them." Pederson v. Moser, 99 Wn.2d 456, 461, 662 P.2d 866 (1983).
The population and majority-voter-petition requirements of Article XI §
3 are specific enough that they may be enforced, and are not mere
general statements of abstract principle. These requirements are
prohibitory. Article XI § 3 does not require the legislature to pass
any law in aid of its provisions, but merely states that other
conditions "may" be added by general law. Accordingly, the
population and majority-voter-petition portions of Article XI § 3 are
The Anderson case helps show why the population and voter-petition
provisions of Article XI § 3 are self-executing. In Anderson, the
question was whether the following provision of Article IV § 10 was
In incorporated cities or towns having more than five thousand
inhabitants the justices of the peace shall receive such salary as may
be provided by law, and shall receive no fees for their own use.
Anderson v. Whatcom County, supra, 15 Wash. at 49; Wash. Const., Art. 4
§ 10 (historical note). This provision was a "mixed bag";
while it set forth certain specific population standards just as Article
XI § 3 does, it provided that the salary would be fixed by law. But the
Court held the population requirement to be self-executing, because
ascertainment of the population was not referred to the Legislature for
action. Id. at 54.
Similarly, in the case of Article XI § 3, neither the population
requirement, nor the petition requirement, is referred to the
legislature for action. While the Legislature may prescribe "other
conditions" on county formation, so long as they are generally
applicable to the whole state, it may not take away or diminish the
population or majority petition requirements, and therefore they do not
depend on legislative action for their binding force - they are
The Petitions themselves contain a map and legal description of the new
County. CP 44. They constitute an act of the People in their original
legislative capacity. Cf., Linn v. Superior Court, supra, 20 Wn.2d at
151-55 (People are supreme legislative authority and have the original
power to enact a municipal charter under Article XI § 10 of the
Constitution). Just as no act of the Legislature could diminish this
power, no act of the Legislature is required to implement this power.
This does not mean, of course, that the Legislature may not pass general
laws in aid of either the population or the petition requirement in
Article XI § 3. As our sister State's highest court explained:
[W]hen a provision of the Constitution is self-executing, legislation
may be desirable for the better protection of the right secured and to
provide a more specific and convenient remedy for carrying out such
provision . . .. As said by Judge Cooley, in his work on Constitutional
Limitations (page 122), a constitutional provision that is
self-executing may admit of supplementary legislation in particulars
where in itself it is not as complete as may be desirable. It will also
override and nullify whatever legislation, either prior or subsequent,
would defeat or limit the right. Reeves v. Anderson, 13 Wash. 17, 42
Pac. 625  . . .. And so the Legislature may enact laws to
facilitate the enforcement of constitutional provisions that are
self-executing, and such laws will be obligatory upon the court when
intended by the Legislature to be mandatory, so long as they do not
curtail the rights reserved or exceed the limitations specified therein.
Stevens v. Benson, 50 Or. 269, 274, 91 P. 577 (1907) (emphasis added).
As Stevens points out, the key limitation is that the "general
law" enacted in aid of a constitutional provision must not act to
limit or diminish any of the rights guaranteed by the Constitution.
Accord, e.g., Anderson v. Whatcom County, supra, 15 Wash. at 53
("all such legislation [in aid of a self-executing constitutional
provision] must be subordinate to the constitutional provision, and in
furtherance of its purpose, and must not, in any particular, attempt to
narrow or embarrass it."). Obviously, the Legislature, under the
guise of enacting a "general law" on county formation, could
not raise the population required of the new county to 10,000, or raise
the percentage of voters required on the petition to two-thirds. These
actions would frustrate the express intent of the Framers. But if it
cannot act to frustrate the intent of the Framers, can it achieve the
same objective by inaction? Of course not!
Confronting Legislative failure to fully fund our school system, and its
effect upon the Constitution's mandate that "[i]t is the paramount
duty of the state to make ample provision for . . . education . .
.," Wash. Const., Art. IX § 1, this Court stated:
Just as the Legislature cannot abridge constitutional rights by its
enactments, it cannot curtail mandatory provisions by its silence.
Seattle School District v. State, supra, 90 Wn.2d at 503 n.7 (emphasis
added). This has long been the rule in Washington. Thus, in Anderson v.
Whatcom County, supra, 15 Wash. 47, where the constitutional right of a
Justice of the Peace to a salary based on County population in excess of
5,000 people was threatened by the failure of the Legislature to make
provision for the taking of a census, id. at 49-50, this Court said:
The test . . . must be a reasonable one, -- one which would carry into
effect the constitutional guaranty, instead of destroying it. . . . It
was evidently the intention of the framers of the constitution to
provide . . . for officers in large cities and towns, and these positive
declarations in the constitution cannot be abrogated or destroyed by
unreasonable action or nonaction on the part of the legislature.
Id. at 53 (emphasis added); accord, State ex. rel. Smith v. Neal, 25
Wash. 264, 65 P. 188 (1901) (another salary - census case, in which the
Court held that "[t]he mere fact that the legislature, has failed
to point out the means of ascertaining the population should not defeat
the plain provisions of the law and the mandates of the
constitution."); see also, Hindman v. Boyd, 42 Wash. 17, 29, 84 P.
609 (1906) (corporate authorities of city cannot defeat constitutional
right of the people to submit proposed charter to a vote, because to so
hold "would place it within the power of the corporate authorities
to perpetually prevent the people from exercising a fundamental
It should come as no surprise that the Legislature can no more diminish
the People's rights under Article XI § 3 by inaction than it could by
direct action in contradiction to the Constitution. It follows that the
mandatory, self-executing right of the voters to break off from their
existing county by majority petition does not depend on the enactment of
a general law by the Legislature, and it cannot be defeated by the
Legislature's failure to act.
C. "Majority of the Voters" in Article XI § 3 Means a
Majority of Those Who Actually Voted in the Last General Election
Before discussing whether the verified signatures presented by
Appellants were sufficient to constitute a majority, we wish to
emphasize that regardless of the Court's ruling on this issue, a
definitive ruling on the meaning of the majority petition provision of
Article XI § 3 is desperately needed by the People of Washington.
People are standing by, ready to exercise their rights under Article XI
§ 3, but in the present confused state of the law, they do not know how
to proceed, or even whether they have any voice at all in this process.
These citizens deserve a ruling from their highest Court, so they know
what their rights are.
If this Court believes that the only defect with the Petition is the
number of signatures, rather than dismissing outright, it should remand
to allow the trial court to fashion a decree establishing a framework
for gathering the remaining signatures. This falls within the broad
equitable powers of the court to frame relief in a declaratory judgment
and equitable matter to suit the particular facts and circumstances of
the case. Brown v. Voss, 105 Wn.2d 366, 372, 715 P.2d 514 (1986); RCW
2. Use of the Term "Voters" Instead of "Electors" or
"Qualified Voters" Shows Intent to Measure
"Majority" Against Those Who Actually Vote
Article XI § 3 requires a petition from "a majority of the voters
living in such territory". "[S]uch territory" refers back
to the "territory stricken" from an existing county. The issue
here is whether this language requires a majority of the voters who
voted at the last election, or a majority of the registered voters.
There was no statewide system of voter registration at the time of the
Constitution. Indeed, the Constitution itself called upon the
Legislature to establish such a system, but it was only mandatory with
respect to cities and towns with populations over 500 people. Wash.
Const., Art. VI § 7. Accordingly, it is incredible to argue that the
Framers intended the term "voters" in Article XI § 3 to mean
"registered voters", since this would have excluded many if
not most of the inhabitants of the State in 1889!
Examination of the evolution of Article XI § 3 casts further light upon
what the Framers meant when they used the term "voters" here.
As originally proposed, Article XI § 3 provided:
That no county be divided or part taken from it without vote of electors
of that county and majority approval of the same.
Journal at 709. Thus, the final version was changed in three key
respects: (1) instead of a vote, only a petition was required; (2)
instead of a majority of those in the county, only a majority of those
in the territory to be stricken was required; and (3) most importantly,
instead of a majority of electors, only a majority of voters was
"'Elector' means any person who possesses all of the qualifications
to vote under Article VI of the state Constitution." RCW 29.01.065.
This includes more than just age and residency qualifications. Under
Article VI of the Constitution, one must be registered to vote if voter
registration is available. Wash. Const., Article VI § 7. Thus,
"elector" means what is commonly referred to now as
"registered voters", although in 1889 it meant those qualified
to vote, whether by registration or otherwise.
Had the Framers used the word "electors" in Article XI § 3,
then registered voters could logically be read into it in light of
modern developments in universal voter registration. Had they used the
phrase "qualified voters", a phrase with which they were
familiar, see, Wash. Const., Art. II § 7, and which has been
interpreted to mean a qualified and registered voter, Defilipis v.
Russell, 52 Wn.2d 745, 747, 328 P.2d 904 (1958), the argument that
"registered voter" was what was intended would make sense. But
they used the term "voters", which meant to them electors who
That the Framers recognized this meaning of the word "voters"
is shown clearly by Article VI § 5:
Voters shall in all cases except treason, felony, and breach of the
peace be privileged from arrest during their attendance at elections and
in going to, and returning therefrom. No elector shall be required to do
military duty on the day of any election except in time of war or public
(Emphasis added.) Thus, the Framers advisedly distinguished between
"voters" who were privileged against arrest in most cases
while attending the polls (i.e., while actually voting), and
"electors" who were simply exempted in most cases from
military service on election day, regardless of whether they actually
3. Early Legislative Practice Confirms this Intent
Five new counties were created by special legislation by early
Washington Legislatures. CP 238-39. Of these, in two cases the
Legislature passed a bill prior to receiving a petition, conditioning
creation upon return of a sufficient petition. CP 239. In each of these
two cases, the Legislature specified that the petition needed to contain
a majority of the voters in the territory voting in the last general
election to be valid. H.B. 418, 1899 Wash. Laws, Ch. XCV, § 3 (Chelan
County); S.B. 177, 1905 Wash. Laws, Ch. 89 § 3 (Benton County); see, CP
54, 62. Unless Chelan and Benton Counties were invalidly formed in
violation of Article XI § 3, this is powerful evidence that a majority
of actual "voters", not qualified electors or registered
voters, is what the Constitution requires.
4. The Cedar County Dicta on this Issue Should be Limited or Overruled
Once again, the only issue necessary to decision of the Cedar County
case was whether the Secretary of State was under any mandatory duty to
certify the petition as an election. Therefore, the rest of the opinion,
including the construction of "majority of the voters living in
such territory", was advisory dicta. See, Cedar County v. Munro,
supra, 134 Wn.2d at 387 (Alexander, J., concurring).
The Court rejected the interpretation of "majority of voters"
proposed here for four reasons: (1) "the plain language of the
constitution specifies that the petition must bear the signatures of a
majority of the voters living in the territory, rather than merely a
majority of the number who exercised their franchise at the most recent
opportunity", id. at 383; (2) an elaborate distinguishing of
out-of-state precedents that were wholly unnecessary to the argument in
the first place, id. at 383-84; (3) by misreading Defilipis, Cedar
County v. Munro, supra, 134 Wn.2d at 384; and (4) because the Court did
not want to allow a minority of registered voters to dictate to the
rest, id. at 385. None of these reasons withstand analysis, and
therefore Cedar County should be narrowed or overruled on this point as
well as on the other points discussed previously.
The debates in convention demonstrate that the phrase "living in
such territory" was - as it plainly says - intended to specify
eligibility to be counted based on where the voters lived, not whether
they were eligible based on prior actual voting or mere registration to
vote. The battle in convention was between "living in such
territory" or "living in such county", because opponents
of the second sentence wanted to make it harder to create a break-off
county by requiring approval of those left behind as well as of those
who were to become part of the new county. Spokane Falls Review, 7/25,
App. at 3-34 col. 2; Journal at 710.
The Defilipis case, at pages 746-47, was cited by the Cedar County
majority to support the proposition, "[a] 'voter' is one who has
become eligible to vote by reason of registration, while an 'elector' is
merely one who is qualified, by reasons, e.g., of age and citizenship,
to vote." Cedar County v. Munro, supra, 134 Wn.2d at 384. In fact,
The basic question is whether the framers of the constitution intended
that the term 'qualified voter,' as used in Art. II, § 7, included
registration to vote. We believe that they intended a meaning beyond
that specified by the word 'elector,' else they would have used
'elector' as descriptive of one eligible to the office of legislator. .
Article II, § 7, and Art. VI, § 7, must be construed together so that
each has meaning; hence, under Art. II, § 7, of the state constitution
a 'qualified voter' is one possessing the present legal power or
capacity to vote. The term, as used in this section, is descriptive of
one who has become eligible to vote by reason of registration. This
gives meaning to the term 'qualified voter.'
Defilipis v. Russell, supra, 52 Wn.2d at 746-47 (emphasis added).
Obviously, Defilipis does not support the proposition stated in Cedar
County, because Defilipis discussed the meaning of the term qualified
voter, not voter.
Finally, with respect to the concern about a minority of registered
voters dictating to the rest, that happens every time people who are
registered to vote choose not to do so. By not voting, electors
acquiesce in having others - often a minority of all registered voters -
make important decisions for them. Furthermore, whether this Court
agrees with the public policy behind the system erected by the Framers
is not the question; the only question is, what was that system? If the
Framers chose to base the system on a majority of actual voters, not
registered voters, that is enough to settle the question.
D. It Would be Manifestly Unjust to Apply Collateral Estoppel
It is unjust to apply collateral estoppel to a question touching the
heart of the right to self-government, especially based on prior cases
in which the parties acted pro se, and were blocked by the very
precedent they seek to challenge here. Collateral estoppel is
principally premised on the lawsuit brought in the name of "Freedom
County" which resulted in affirmance of an order of dismissal
because the named party was not a recognized juridical entity and
therefore not a proper party. Freedom County v. Snohomish County, supra,
95 Wn. App. at 842. However, that decision was based entirely on the
Cedar County v. Munro dicta. Id. at 841-42. Because review was denied,
these parties, who represent over 9500 Snohomish County voters, have
never had an opportunity to address this Court on the meaning of Article
XI § 3, or on whether the Cedar County dicta should be revisited.
Because no other Court can make those kinds of decisions, the prior
rulings of the lower courts should not bar consideration of this case.
Collateral estoppel applies only if "application of the doctrine
does not work an injustice." Thompson v. Department of Licensing,
138 Wn.2d 783, 790, 982 P.2d 601 (1999). Because the prior litigation
was doomed from the outset by the Cedar County dicta, and because the
rights at stake are so fundamental to our system of government, it would
be extremely unjust for the one Court with the power to decide their
case to refuse to hear Plaintiffs' arguments because of collateral
estoppel arising out of ill-structured and poorly argued former pro se
It would be easy for this Court to avoid the difficult questions
presented here on procedural grounds, but to do so would be a disservice
to the citizens of this State. As the law currently stands, it is not
clear that the People have any voice whatsoever in county formation,
despite the powerful language of Article XI § 3 suggesting that they
do. See, e.g., State v. Vantage Bridge, supra, 134 Wash. at 572; Board
of County Comm'rs v. Clausen, supra, 95 Wash. at 222. Under Cedar
County, the People are reduced to mere supplicants, "free" to
appear before the chambers of the mighty in Olympia, hat in hand, to beg
for permission to change the form of the Counties that govern them. That
completely reverses the balance of power intended by our truly free,
self-governing ancestors, who framed a constitution with its very first
article drawn from the Declaration of Independence, stating plainly that
"[a]ll [not some, not just state or city, but all] political power
is inherent in the people, and governments [not just state government,
not just city government] derive their just powers from the consent of
the governed . . .." Wash. Const., Art. I § 1.
Narrow, technical constructions of constitutional provisions which deny
the right of the People to self-government are anathema to everything
this Nation stands for. The People are hungry for democracy, and they
will not be denied. In a State named after Washington, in a Nation
founded in revolution against the tyranny of monarchy, it is right that
it should be so. Thomas Jefferson's very last letter expressed his hope
for the Declaration of Independence he principally drafted some 50 years
May it be to the world, what I believe it will be . . . , the signal of
arousing men to burst the chains under which monkish ignorance and
superstition had persuaded them to bind themselves, and to assume the
blessings and security of self-government.
Letter from Jefferson to Roger Weightman (6/24/1826) (quoted in, Larson,
The Declaration of Independence: a 225th Anniversary Re-interpretation,
76 Wash. L. Rev. 701, 782 (2001)) (emphasis added). Washington's Framers
heeded this call in the Nineteenth Century. If here, in the 21st
Century, self-government has again become something to be feared, then
the Constitution they made is a dead letter. But if self-government is
still our supreme value and finest hope for the future, then this
Court's duty is clear.
For all the foregoing reasons, the summary judgment order should be
REVERSED, and a DECLARATION entered recognizing the existence of Freedom
County as a matter of law, with the case remanded for a hearing on
damages. In the alternative, if this Court agrees with Appellants on the
question of the power of the voters, but disagrees that a majority of
signatures has yet been obtained, we ask for a REMAND to allow the trial
court to fashion relief establishing a framework for obtaining the
remaining signatures required, rather than outright affirmance of the
DATED this ____ day of May, 2002.
Reed Longyear Malnati
Ahrens & Strickland, PS
Michael T. Schein, WSBA 21646
Attorneys for Appellants
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