Gerberding v. Munro

134 Wash. 2d 188

• Court: Washington Supreme Court
• Decided: January 8, 1998
• Docket: No. 65059-4
• Status: Published

Opinions

Talmadge, J.

We are asked in this original action for a writ of mandamus to evaluate the constitutionality of those portions of Initiative 573 (the Term Limits Law) effectively placing term limits on certain state constitutional officers. Initiative 573 prevents individuals who have held state legislative seats or certain state constitutional offices¹ for a prescribed period of time from filing a declaration of candidacy and appearing on the ballot for such offices, although write-in campaigns are permitted. Such restrictions are qualifications beyond those set forth in the Washington Constitution for such offices, and the Legislature or the people acting in their legislative capacity may not add statutory qualifications to those prescribed for state constitutional officers. We find Initiative 573 unconstitutional and issue a writ of mandamus to the secretary of state directing him to accept declarations of candidacy, notwithstanding Initiative 573.

ISSUES

1. Are the provisions of Initiative 573 pertaining to state constitutional officers severable from the provisions pertaining to federal legislators which have been found unconstitutional by federal courts?

2. Do the restrictions on declarations of candidacy and appearance on the ballot for certain candidates with prior office-holding experience set forth in Initiative 573 constitute qualifications for state constitutional offices?

3. May qualifications for state constitutional officers beyond those set forth in the Washington Constitution be added by statute?

4. Does Initiative 573 amend the Washington Constitution?

FACTS

In 1992, Washington voters approved Initiative 573, the Term Limits Law, by a 52 percent majority. That initiative restricted access to the ballot for incumbent state and federal office holders. Section 1 of Initiative 573 sets forth the perceptions upon which enactment of the initiative was based:²

(1) The people will best be served by citizen legislators who are subject to a reasonable degree of rotation in office;

(2) Entrenched incumbents have become indifferent to the conditions and concerns of the people;

(3) Entrenched incumbents have an inordinate advantage in elections because of their control of campaign finance laws and gerrymandering of electoral districts;

(4) Entrenched incumbency has discouraged qualified citizens from seeking public office;

(5) Entrenched incumbents have become preoccupied with their own reelection and devote more effort to campaigning than to making legislative decisions for the benefit of the people;

(6) Entrenched incumbents have become closely aligned with special interest groups who provide contributions and support for their reelection campaigns, give entrenched incumbents special favors, and lobby office holders for special interest legislation to the detriment of the people of this state, and may create corruption or the appearance of corruption of the legislative system;

(7) The people of Washington have a compelling interest in preventing the self-perpetuating monopoly of elective office by a dynastic ruling class.

Laws of 1993, ch. 1, § 1. This preamble to Initiative 573 strongly implies its purpose is to make incumbents ineligible for specified state constitutional offices. See RCW 29.15.240.

Under the initiative, persons who have served for 8 or more of the last 14 years (measured from the end of current term of office) for governor or lieutenant governor may not file a declaration of candidacy or appear on the ballot for such offices. RCW 43.01.015. Similar restrictions, with variations in the years of service, are established for state legislators, RCW 44.04.015; United States representatives, RCW 29.68.015; and United States senators, RCW 29.68.016. The Secretary of State may not accept declarations of candidacy or nomination papers, or permit a person’s name to appear on the ballot if the person is subject to these restrictions. RCW 29.15.240(l).³ Citizens’ suits are allowed to enforce Initiative 573. RCW 7.16.370.⁴

Initiative 573 permits the people to write in the name of a candidate, notwithstanding the restrictions it establishes. RCW 29.51.173. But the effect of such a write-in campaign is limited. If the incumbent write-in candidate wins his or her party’s nomination, the candidate is still barred from the general election ballot and the Voters’ Pamphlet. See RCW 29.15.240(1); RCW 29.80.010. Thus, the candidate must mount a second write-in campaign for the general election.⁵

Upon its enactment, Initiative 573 was challenged in federal court with respect to its effect on federal officers. Sections 4, 5, and 8 relating to United States senators and representatives were invalidated by the federal courts. See Thorsted v. Gregoire, 841 F. Supp. 1068 (W.D. Wash. 1994), aff’d sub nom. Thorsted v. Munro, 75 F.3d 454 (9th Cir. 1996). State constitutional officers were not at issue in the federal litigation.

The present original action was filed on March 21, 1997. The petitioners include voters, Common Cause of Washington, the Association of Washington Cities, and incumbent legislators. The respondents are Ralph Munro, the secretary of state, in his capacity as the state’s chief elections officer, RCW 29.04.070, and the attorney general. The action seeks invalidation of the Term Limits Law and issuance of a writ of mandamus directing the secretary of state to allow incumbents access to the ballot. RAP 16.2(b). The secretary of state opposed the petition, arguing our consideration of Initiative 573 was premature. We, nevertheless, retained the petition. We granted the motion to intervene of public interest groups, U.S. Term Limits, Inc. (USTL) and Citizens for Leaders with Ethics and Accountability Now, Inc. (CLEAN). We also granted amicus curiae status to the Pacific Legal Foundation (PLF).

ANALYSIS

In addressing an original action, we are guided by the principles of RAP 16.2 regarding the filing of original actions against a state officer. The parties here have stipulated to the facts so that a factual reference hearing pursuant to RAP 16.2(d) is unnecessary. The case takes the same course of review as any other case where we accept review of a trial court decision. RAP 16.2(e).

The Washington Constitution confers original jurisdiction upon this Court in “mandamus as to all state officers.” Wash. Const, art. IVJ § 4. Mandamus will not lie to compel a discretionary act, State ex rel. Burlington N., Inc. v. Utilities & Transp. Comm’n, 93 Wn.2d 398, 410, 609 P.2d 1375 (1980), nor lie to direct a state officer to generally perform constitutional duties. Walker v. Munro, 124 Wn.2d 402, 407-08, 879 P.2d 920 (1994). Mandamus will lie to compel a state officer to undertake a clear duty. Id. at 408; see also State ex rel. Burlington Northern, 93 Wn.2d at 410. We can declare a law unconstitutional in a mandamus action only if such a declaration is necessary to the issuance of the writ. See Walker, 124 Wn.2d at 409.

In this case, if we find Initiative 573 unconstitutional, mandamus will properly lie as to the Secretary of State. The Secretary is the chief elections officer for the state. RCW 29.04.070. The Secretary accepts declarations of candidacy for state executive officers, RCW 29.15.030(1), and legislators whose districts encompass multiple counties. RCW 29.15.030(2). The Secretary makes rules to facilitate the execution of election laws and assists local elections officers by devising uniform forms and procedures. RCW 29.04.080. The Secretary also prepares the official state Voters’ Pamphlet, RCW 29.80.010, and certifies names of candidates for placement on the election ballot. See RCW 29.04.210(1), (8); RCW 29.30.101; RCW 29.79.230. Thus, the writ would compel the Secretary to undertake a clear legal duty, to accept declarations of candidacy and nominations papers, and certify for placement on the election ballot the names of candidates otherwise disqualified by Initiative 573.

Turning to the arguments raised by the parties in this case, petitioners assert Initiative 573 is unconstitutional, offering three arguments: (1) the term limit provisions for state constitutional officers cannot be severed from the unconstitutional federal legislator provisions; (2) Initiative 573 impermissibly adds to the exclusive list of qualifications contained in the Washington Constitution, which can be altered only by constitutional amendment; (3) Initiative 573 violates petitioners’ rights of expression, suffrage, free association, and equal treatment under the Washington and United States Constitutions. Respondents assert the provisions of Initiative 573 at issue here are constitutionally valid. Intervenors and PLF contend Initiative 573 should be sustained on policy grounds.

In our analysis of the provisions of Initiative 573 we are guided by general principles for evaluating its constitutionality. First, the statute is presumed constitutional and parties challenging its constitutionality must demonstrate its unconstitutionality beyond a reasonable doubt. City of Seattle v. Montana, 129 Wn.2d 583, 589, 919 P.2d 1218 (1996); Erickson & Assocs., Inc. v. McLerran, 123 Wn.2d 864, 869, 872 P.2d 1090 (1994); State v. Brayman, 110 Wn.2d 183, 193, 751 P.2d 294 (1988). Second, while initiative measures are reflective of the reserved power of the people to legislate, Save Our State Park v. Hordyk, 71 Wn. App. 84, 89-90, 856 P.2d 734 (1993), the people in their legislative capacity remain subject to the mandates of the Constitution. Culliton v. Chase, 174 Wash. 363, 373-74, 25 P.2d 81 (1933). Finally, the Washington Constitution is a restriction on legislative power rather than a grant of powers. Moses Lake Sch. Dist. No. 161 v. Big Bend Community College, 81 Wn.2d 551, 555, 503 P.2d 86 (1972), appeal dismissed, 412 U.S. 934 (1973); Fain v. Chapman, 89 Wn.2d 48, 53, 569 P.2d 1135 (1977).

A. Severability

The first issue advanced by petitioners is that because the provisions of Initiative 573 pertaining to federal legislators were found unconstitutional in Thorsted, 841 F. Supp. 1068, the provisions pertaining to state constitutional officers fail as well because they cannot be severed from the unconstitutional portions of the measure.

The basic test for severability of constitutional and unconstitutional provisions of legislation is set forth in Hall v. Niemer, 97 Wn.2d 574, 582, 649 P.2d 98 (1982) (quoting State ex rel. King County v. State Tax Comm’n, 174 Wash. 336, 339-40, 24 P.2d 1094 (1933)):

whether the constitutional and unconstitutional provisions are so connected . . . that it could not be believed that the legislature would have passed one without the other; or where the part eliminated is so intimately connected with the balance of the act as to make it useless to accomplish the purposes of the legislature.

Accord Leonard v. City of Spokane, 127 Wn.2d 194, 201, 897 P.2d 358 (1995).

With respect to the first requirement, where a severability clause is present in legislation, we have found such a clause to provide the necessary assurance that the Legislature would have enacted the appropriate sections of the legislation despite the unconstitutional sections. State v. Anderson, 81 Wn.2d 234, 236, 501 P.2d 184 (1972). Initiative 573 contains a severability clause so that the first aspect of the severability test is met. See Laws of 1993, ch. 1, § 10.

As to the second requirement, petitioners assert the elimination of the unconstitutional portions of Initiative 573 pertaining to federal legislators so destroys the act as to render it incapable of accomplishing its intended purpose. They note the frequent references in the 1992 Voters’ Eamphlet to “national issues” as to the intent of Initiative 573, claiming the term limits for federal legislators were essential to its enactment by the people. The 1992 Voters’ Pamphlet refers to the national debt and tax burden, the S&L (savings and loan) bailout and congressional banking and postal scandals. However, even a cursory look at the pamphlet reveals many references to state offices, referring to governor, lieutenant governor and state senators and representatives. Although the pamphlet notes several national issues, its lamentations regarding the evils of incumbency and elimination of “deadwood” can fairly be read as applying equally to the state constitutional officers addressed in the initiative. Thus, even without the portions relating to national office, as Initiative 573 addresses perceived evils of incumbency in state offices, it has not been rendered “useless,” as required by the test for sever-ability. Nor can it fairly be said that the state office provisions would not have been independently supported by the initiative proponents and voters seeking to address the perceived evils of incumbency at the local level. The second prong of the severability test is also met.

The provisions of Initiative 573 addressing state constitutional officers are severable, and are not unconstitutional per se because the provisions regarding federal legislators have been found by federal courts to violate the federal constitution.

B. Qualifications for State Constitutional Officers

The next question before us is whether the provisions of Initiative 573 are qualifications for state constitutional officers and whether the qualifications, set in the Washington Constitution for the officers in question, may be supplemented by statute.

1. Term Limits Are Qualifications

The threshold question we must answer is whether the restrictions set forth in Initiative 573 for certain candidates constitute “qualifications” for office. In the traditional sense, qualifications for office are attributes which must be met before a person can be a candidate for office or officeholder such as age, residence, or citizenship. The dictionary definition is ”... [a] condition or circumstance which must be satisfied.” Webster’s II New Riverside University Dictionary 961 (1984). As the term itself is undefined in the Constitution, we apply its ordinary meaning. See Boeing Co. v. Aetna Cas. & Sur. Co., 113 Wn.2d 869, 877, 784 P.2d 507 (1990) (undefined terms are given their “plain, ordinary and popular” meaning; and courts look to standard English language dictionaries to determine the ordinary meaning of such terms).

Initiative 573, however, frames the limitation in a negative sense, barring certain people from being candidates. A “negative” framing of the attribute does not preclude it from being a qualification. In Powell v. McCormack, 395 U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969), the United States Supreme Court addressed U.S. Const, art. I, § 2, cl. 2, the qualifications clause for members of the United States House of Representatives.⁶ The Court rejected a contention that the negative phrasing of the qualifications clause prescribed standing incapacities only and did not impose further limits on the power of each house to judge its members’ fitness for office. See Powell, 89 S. Ct. at 1972-77. In holding the House was without power to exclude any member-elect who met the Constitution’s requirements for membership, the Court recognized the qualifications clause provides an exclusive list of qualifications, notwithstanding its negative phrasing. Id. at 1972-73.

In State ex rel. Chandler v. Howell, 104 Wash. 99, 175 P. 569 (1918), we held the Washington Constitution’s prohibition on judges seeking other offices during the term for which they were elected was a qualification that could not be added to those set for federal legislative office under the United States Constitution.

Moreover, under Wash. Const, art. IY § 3(a) (amend. 25), judges have a mandatory retirement age of 75 years. Thus, framed more positively, a qualification for judicial office in Washington is that judges must be 75 years of age or younger.

While some proponents of term limits of the sort established by Initiative 573 have contended the restrictions on incumbents relate to ballot access, such restrictions have been interpreted to be qualifications for office. The United States Supreme Court in United States Term Limits, Inc. v. Thornton, 514 U.S. 779, 829-39, 115 S. Ct. 1842, 1867-71, 131 L. Ed. 2d 881 (1995), rejected the view that an Arkansas constitutional amendment imposing term limits was a valid ballot access measure, and held term limits constituted a qualification for federal legislative office; such addition to the constitutional qualifications for federal office was invalid. See also Thorsted v. Gregoire, 841 F. Supp. 1068, 1081 (W.D. Wash. 1994) (Initiative 573 imposes a new qualification for office: nonincumbency beyond the specified periods), aff’d sub nom. Thorsted v. Munro, 75 F.3d 454 (9th Cir. 1996); Alaskans for Legislative Reform v. State, 887 P.2d 960, 966 (Alaska 1994) (rejecting Alaska’s term limits initiative because it imposed “ ‘qualifications’ as that term has been used by constitutional delegates, political thinkers, legal scholars, and courts”).

Likewise in 1895, we interpreted the term limit provision of former article XI, section 7⁷ as a qualification for county treasurers. In Koontz v. Kurtzman, 12 Wash. 59, 40 P. 622 (1895), an unsuccessful candidate for county treasurer challenged the election asserting the person elected was ineligible to hold office under former Wash. Const, art. XI, § 7 alleging a partial term served by the treasurer pursuant to appointment should be counted in applying the term limit. In analyzing the issue, we treated the term limit as a qualification:

We are of the opinion that appellant was not disqualified from holding the second term under [article XI, section 7], in consequence of having served for a part of a term under the appointment by the commissioners. The constitution does not say that no person shall hold a county office for more than four years, but says that he shall not hold it for more than two terms in succession. It interposes a term limit but not a time limit. The term of office is fixed by law and is two years, and there may he several different incumbents during a single term.

Koontz, 12 Wash. at 60 (emphasis added).

Counsel for Respondents Munro and Gregoire effectively conceded the restrictions of Initiative 573 are qualifications in oral argument. As the intent section of the measure proclaims, and the effect of the measure commands, nonincumbency as described in Initiative 573 becomes a qualification for state constitutional officers, and we so hold.

2. Qualifications for State Constitutional Officers Are Exclusive

Having determined Initiative 573 establishes nonincumbency as a new qualification for state constitutional officers we next turn to the question of whether qualifications can be added by statute to the qualifications set forth in the constitution for such officers. Petitioners contend the qualifications mandated by Initiative 573 unconstitutionally add to the exclusive qualifications for state constitutional officers established in the Washington Constitution. Respondents, in turn, assert the negative phraseology of the Constitution indicates the qualifications for state constitutional officers are minimums to which the Legislature or the people may add by statute.

In determining whether term limits constitute impermissible qualifications beyond those expressed in our state Constitution, it is important to revisit fundamental principles regarding qualifications for state constitutional offices. Our cases have expressed a strong presumption in favor of eligibility for office. In State v. Schragg, 158 Wash. 74, 78, 291 P. 321 (1930), we stated:

Since the right to participate in the government is the common right of all, it is the unqualified right of any eligible person within the state to aspire to any of these offices, and equally the unqualified right of the people of the state to choose from among those aspiring the persons who shall hold such offices. It must follow from these considerations that eligibility to an office in the state is to be presumed rather than to be denied, and must further follow that any doubt as to the eligibility of any person to hold an office must be resolved against the doubt.

Id. at 78. Accord State ex rel. O’Connell v. Dubuque, 68 Wn.2d 553, 566, 413 P.2d 972 (1966) (“[a] strong public policy exists in favor of eligibility for public office, and the constitution, where the language and context allows, should be construed so as to preserve this eligibility”).

The Washington Constitution sets forth qualifications for state legislative offices:

Qualifications of Legislators. No person shall be eligible to the legislature who shall not be a citizen of the United States and a qualified voter in the district for which he is chosen.

Wash. Const, art. II, § 7. Similarly, the Constitution establishes qualifications for state executive officers:

Qualifications, Compensation, Offices Which May Be Abolished. No person, except a citizen of the United States and a qualified elector of this state, shall be eligible to hold any state office ....

Wash. Const, art. Ill, § 25 (amend. 31). The history of these provisions indicates they were meant to be the exclusive qualifications for such state constitutional officers.

The constitutional provisions establishing qualifications for state constitutional officers were the subject of intense debate in the 1889 Constitutional Convention. The original draft of article III, section 25, provided a general residency in Washington requirement of two years in addition to other qualifications. For the governor and lieutenant governor, a minimum age of 35 years and a five-year Washington residency requirement were established. This draft of the section was ultimately rejected. See The Journal of the Washington State Constitutional Convention 1889, at 589-91 (Beverly Paulik Rosenow ed., 1962).

Term limits were also debated, and in some cases applied, when qualifications for certain state offices were being determined. As originally adopted in 1889, Wash. Const. art. Ill, § 25, provided in part:

No person, except a citizen of the United States and a qualified elector of this state shall be eligible to hold any state office, and the State Treasurer shall be ineligible for the term succeeding that for which he was elected . . .

(Emphasis added.) Journal at 589-90.⁸ Similarly, former Wash. Const, art. XI, § 7, initially provided:

No county officer shall be eligible to hold his office more than two terms in succession.

Journal at 720.⁹

Delegates at the 1889 Constitutional Convention considered but rejected term limits for other offices. Journal at 589-91. When article III, section 25, was being considered in July of 1889, delegate J. Z. Moore moved to amend the section to make the governor as well as the treasurer ineligible for a succeeding term. The Convention considered but rejected imposition of a term limit for the office of governor. Id. at 591. In addition, delegate Suksdorf moved “that no other state officer should hold office for more than two terms in succession.” Id. The Convention also defeated this motion. Id.

A similar process took place at the 1889 Convention in addressing article II, section 7. The actual qualifications for state legislators came only after several motions to change the section by convention delegates. The initial draft of that section required a legislative candidate to be a citizen of the United States, a resident of the state for two years, and a qualified voter of the district where she or he is chosen; provided, that at the first election every citizen of the United States who was a qualified voter when elected was eligible. A motion by delegate Griffiths to strike the two-year residence qualification failed. A subsequent motion by delegate T. M. Reed to strike language drawing a distinction between the eligibility of candidates at the first and subsequent elections carried. A motion to strike the entire section by delegate E C. Sullivan lost, and a final motion by delegate Dunbar to “amend so that a member of Legislature must be a citizen of the United States and an elector of the state, leaving out the two-year requirement of residence” carried. Journal at 240, 527-28.

Washington’s constitutional framers believed qualifications for state constitutional officers were a matter of constitutional, not statutory, concern. They debated citizenship, residency in the state, age, status as qualified elector, and term limits in ultimately arriving at the appropriate qualifications for state constitutional officers.

Additionally, the framers did not confer authority on the Legislature to prescribe additional qualifications for such officers. Various constitutional provisions demonstrate the framers knew how to grant, and expressly did grant the Legislature lawmaking authority pertaining to certain constitutional offices. See, e.g., Wash. Const, art. Ill, §§ 19-23 (establishing constitutional offices and providing such officers shall perform duties “as may be prescribed by law,” thereby expressly delegating to the Legislature the power to fix the officers’ duties). See also Wash. Const, art. IV § 3(a) (amend. 25) (setting mandatory retirement age for judges but authorizing Legislature to fix a lesser age). Article III, section 25 itself allows the Legislature to abolish certain offices by statute. The framers were careful to spell out the extent of legislative power over other constitutional offices, indicating that if the framers intended the Legislature to have authority to add to the qualifications of Wash. Const, art. II, § 7, and art. Ill, § 25, they would have so stated.

In addition to the text of the Constitution itself and our constitutional history, our case law indicates the qualifications sections of the Washington Constitution are exclusive. In In re Bartz, 47 Wn.2d 161, 287 P.2d 119 (1955), we stated the general rule with respect to constitutional qualifications for office:

where the constitution has set forth qualifications for an office, either general or specific, in the absence of an express grant of power to the legislature, there is an implied prohibition against the imposition of additional qualifications by the legislature.

Bartz, 47 Wn.2d at 164.

In Bartz, we upheld a statute requiring justices of the peace in cities of over 5,000 population to be attorneys. We noted the specific constitutional qualifications for executive and legislative office and held where the Constitution failed to provide qualifications regarding justices of the peace, the legislature could appropriately fill the vacuum because enactment of such laws would not conflict with any express or implied constitutional provision. We indicated this holding was consistent with the concept of the Washington Constitution as a restriction on legislative powers, and followed from the authority expressly granted the Legislature by Wash. Const, art. iy § 10 (amend. 65) to determine the powers, duties, and jurisdiction of justices of the peace. We also noted laws governing the qualifications of these officers had been in effect for many years at the time the state Constitution was adopted. Bartz, 47 Wn.2d at 166-68.

Under the general rule in Bartz, qualifications may not be supplemented by a legislative act where qualifications for the state officers have been expressly stated in article 111, section 25 (regarding executive offices), and article II, section 7 (regarding legislative offices). This general rule has been repeatedly expressed in cases across the United States. 63C Am. Jur. 2d Public Officers and Employees § 51, at 494-95 (1997), noting the general rule to be “where the constitution establishes specific eligibility requirements for a particular constitutional office, the constitutional criteria are exclusive.” See, e.g., Alaskans for Legislative Reform v. State, 887 P.2d 960, 966 (Alaska 1994) (Alaska’s Constitution sets forth qualifications for legislative office and term limits may not be added thereto by initiative); Reale v. Board of Real Estate Appraisers, 880 P.2d 1205, 1206-08 (Colo. 1994) (collecting cases and noting: “The law is well established that, where a state constitution provides for certain officials and names the qualification for such officers, the legislature is without authority to prescribe additional qualifications.”); Opinion of the Justices, 240 Mass. 611, 614, 135 N.E. 305 (1922) (where qualifications of voters or officers are fixed by the Constitution the Legislature cannot add to or subtract from them); Pavlak v. Growe, 284 N.W.2d 174, 180 (Minn. 1979) (holding fair campaign statute void as imposing an additional qualification for office not specified by the Constitution); Imbrie v. Marsh, 3 N.J. 578, 585-86, 71 A.2d 352, 18 A.L.R.2d 241 (1950) (collecting authorities and noting “The recognized authorities on public law are in accord: ‘It would seem but fair reasoning upon the plainest principles of interpretation, that when the Constitution established certain qualifications as necessary for office, it meant to exclude all others as prerequisites , » “ ‘The legislature cannot add to the constitutional qualifications of an officer’.” (citations omitted)). Accord State ex rel. Powers v. Welch, 198 Or. 670, 672-73, 259 P.2d 112, 114 (1953); Whitney v. Bolin, 85 Ariz. 44, 47, 330 P.2d 1003, 1005 (1958); Thomas v. State ex rel. Cobb, 58 So. 2d 173, 184, 34 A.L.R.2d 140 (Fla. 1952); State v. Betensen, 14 Utah 2d 121, 378 P.2d 669 (1963); State ex rel. Palagi v. Regan, 113 Mont. 343, 126 P.2d 818, 826 (1942); Gibbany v. Ford, 29 N.M. 621, 225 P. 577, 578 (1924); Cornell v. McAllister, 121 Okla. 285, 249 P. 959, 961 (1926). See also People ex rel. Hoyne v. McCormick, 261 Ill. 413, 423, 103 N.E. 1053, 1057 (1913); League of Women Voters v. Secretary of Commonwealth, 425 Mass. 424, 430, 681 N.E.2d 842, 846 (1997) (rejecting the contention that the people by initiative alone can alter the qualifications for such office prescribed by the constitution, the Supreme Judicial Court of Massachusetts opined: “The idea that constitutionally prescribed qualifications may be changed only by constitutional amendment is intuitively sound.”). Contra, League of Women Voters v. Secretary of State, 683 A.2d 769 (Me. 1996) (upholding statute, enacted by initiative, adding to qualifications of state constitutional officers).

Respondents assert the “better-reasoned” decisions of other state courts support the conclusion the qualifications for state constitutional officers listed in the Washington Constitution are not exclusive. Relying on annotations appearing in Legislative Power to Prescribe Qualifications for or Conditions of Eligibility to Constitutional Office, 34 A.L.R.2d 155, 167 (1954), they argue constitutional provisions phrased positively are exclusive lists of qualifications, while those phrased negatively, like Washington’s, are minimum requirements. Whether phrased negatively or positively, such requirements are qualifications. The critical issue is whether such qualifications are exclusive.

Respondents also argue “Courts interpreting provisions constructed similarly to Washington’s have often concluded that additional qualifications can be added by statute.” Br. of Resp’t at 18-19. They cite four cases from the annotations, Boughton v. Price, 70 Idaho 243, 215 P.2d 286 (1950); Darrow v. People, 8 Colo. 417, 8 P. 661 (1885); State v. Johnson, 33 Del. 334, 138 A. 280 (Super. Ct. 1927); and State ex rel. Thompson v. McAllister, 38 W. Va. 485, 18 S.E. 770 (1893), while noting “[i]n candor to the tribunal, however, the annotation also notes a number of cases from other states for the opposite proposition.” Br. of Resp’t at 19 n.20. Indeed, we specifically noted the Boughton case and rejected its approach in Bartz. See Bartz, 47 Wn.2d at 164. The other cases are readily distinguishable. Darrow, Johnson and Thompson involve statutorily-added qualifications to a “statutorily created office” and are thus inapposite. The very annotation upon which respondents rely distinguishes the Legislature’s power over statutory offices as opposed to constitutional offices, noting:

It is generally considered that the legislature has full control over offices created by its enactment of a statute, whereas its power over constitutional offices is limited; and that it cannot abolish a constitutional office, nor change such an office, except as expressly permitted by the constitution.

34 A.L.R.2d at 168 (citation and footnote omitted). Indeed, although respondents cite the Johnson case, upholding the Delaware Legislature’s addition of qualifications to the statutory office of levy court commissioner, they overlook the annotation’s discussion of the later case of Buckingham v. State ex rel. Killoran, 42 Del. 405, 35 A.2d 903 (1944), in which the Delaware court rejected legislatively-imposed additional qualifications on constitutionally created judicial offices stating:

We are convinced from all the authorities that the Legislative branch of government has no authority to add further qualifications in connection with a constitutional judicial officer where the qualifications are provided by the Constitution.

34 A.L.R.2d at 188 (quoting Buckingham, 42 Del. at 415, 35 A.2d at 907). This latter pronouncement by the Delaware court is in accord with our approach in Bartz.

Intervenors argue the qualifications listed in the Constitution are minimums which may be added to by statute, listing several statutory examples. These statutes do not support their position. RCW 43.10.010 requires the attorney general to be a qualified practitioner before the supreme court of this state. This qualification can be traced to Laws of 1887-88, § 3, at 7, which noted the “attorney general of this Territory shall be learned in the law and shall be a qualified practitioner before the supreme and district courts of this Territory.” This then existing qualification was recognized by the Washington Constitution upon its adoption in 1889 via art. XXVII, § 2, which recognized and retained all territorial laws then in effect. See Wash. Const, art. XXVII, § 2; In re Bartz, 47 Wn.2d 161, 167, 287 P.2d 119 (1955); State v. Estill, 55 Wn.2d 576, 582, 349 P.2d 210, 89 A.L.R.2d 1251 (1960) (Mallery, J., concurring) (noting the provisions of Wash. Const, art. XXVII, § 2, and stating: “Territorial laws have a specific constitutional sanction and approval which subsequent state statutes do not have”).

Intervenors also claim that judges in Washington are disqualified from office at age 75, citing RCW 2.10.100(3). This statute, part of the chapter 2.10 RCW provisions regarding the judicial retirement system, merely echoes a constitutional requirement found at Wash. Const, art. IV § 3(a) (amend. 25). The mandatory retirement age for judges is constitutionally, not statutorily prescribed.¹⁰

RCW 29.65.010(4) cited by intervenors is not even a qualification for state office. That statute provides an avenue by which any registered voter may contest any election to public office where the person elected gave or offered a bribe to a voter, inspector, or judge of election for the purpose of procuring his election. RCW 29.65.010(4). This statute addresses unlawful voting irregularities, not qualifications for office.

The general rule in Bartz remains the applicable principle as to statutory additions to qualifications for constitutional offices. Where the framers established qualifications for office, did not confer express authority upon the Legislature to add to such qualifications by statute, and specifically debated term limits, rejecting such qualifications for the officers in question, we must conclude that article II, section 7 and article III, section 25 are exclusive. Washington’s constitutional framers evidenced an intent to allow broad eligibility for public office in setting the qualifications for state constitutional officers. We believe it the wiser course to adopt the general rule expressed in Bartz and not allow the qualifications for state constitutional officers to be easily altered by the particular politics of the moment.

C. Initiative 573 Did Not Amend the Constitution

The intervenors claim the Washington Constitution can be amended by initiative. They contend “[e]ven if the Legislature lacks authority to qualify eligibility by term limits, the citizens have such authority through the initiative process.” Intervenors Br. at 39. In this case, by its terms, Initiative 573 is a statutory enactment. It was not designed to amend either article II, section 7 or article III, section 25 of our Constitution. Initiative 573 did not and cannot add qualifications to those prescribed in the Washington Constitution for state officers.¹¹

CONCLUSION¹²

Recognizing its political significance, we are not swayed in our analysis of Initiative 573 by the policy merits or demerits of term limits for officeholders. The wisdom of term limits is ultimately a policy decision for the voters of this state, through the process for constitutional amendment articulated in Wash. Const, art. XXIII. Whether this Court thinks such choice wise, or results in the best or most effective state constitutional officers, is of no consequence. With or without Initiative 573, the people retain the ultimate power to limit election of incumbents: by the reasoned and determined exercise of their franchise, they may in their discretion evict incumbents from office at the next election. Our review here is limited to the issue of whether the voters acted in compliance with our state’s Constitution in expressing their collective will.

Initiative 573 improperly attempts to add qualifications to constitutional offices by statute. A statute, whether adopted by the Legislature or the people, may not add qualifications for state constitutional officers where the Constitution sets those qualifications.

We hereby order that a writ of mandamus be issued to the Secretary of State, requiring him to accept declarations of candidacy and nomination papers and certify names of candidates for placement on the ballot, in accordance with existing election laws, notwithstanding Initiative 573.

Durham, C.J., and Dolliver, Guy, Johnson, and Madsen, JJ, concur.

1 Aside from legislative offices, Initiative 573 affects only the governor and the lieutenant governor, and not the judiciary, attorney general, secretary of state, auditor, treasurer, superintendent of public instruction (SPI), land commissioner, or insurance commissioner. Ironically, in 1962 Op. Atty. Gen. No. 173, at 1, the attorney general concluded the Legislature did not have the authority to establish additional qualifications for the SPI beyond those set forth in article III, section 25:

“[t]he legislature does not have the authority to establish qualifications for the office of the state superintendent of public instruction in addition to those found in Article III, § 25, Amendment 31, of the Washington State Constitution.”

2 Prior to the enactment of Initiative 573, significant turnover in the Washington Legislature occurred without the mandate of this law. In the 1992 election itself, the Washington House of Representatives had 38 newly elected members, or 39 percent, and the Senate had 16 newly elected members, or 33 percent. The House of Representatives had 42 new members after the 1994 election. See 1993-94 Washington Legislative Manual at 469-78, 529-44; 1995-96 Washington Legislative Manual at 453-68.

It is also noteworthy the voters in 1996 rejected Initiative 670 which would have required a notation on the ballot affixed to the name of any candidate who opposed term limits.

3 The use of this language regarding declarations of candidacy, nomination papers, and names on the ballot also means the Secretary, who is charged with preparing the official Voters’ Pamphlet, may not include candidates subject to Initiative 573 in the official Voters’ Pamphlet. RCW 29.80.010; RCW 29.04.180.

4 Because section 7(2) of Initiative 573 excludes service before November 3, 1992 in any eligibility calculation, 1998 will be the first year in which some members of the State House of Representatives will be subject to Initiative 573. No state senator will be affected until the year 2000. Since a new governor and lieutenant governor were elected in 1996, 2004 is the first year in which there may be an incumbent in either of those offices subject to the provisions of Initiative 573. See RCW 29.15.240(2).

5 Cf. Representative Linda Smith’s successful 1994 Congressional campaign, in which she secured the Republican Party nomination by a write-in campaign, but her name was placed on the general election ballot and her statement and photograph appeared in the Voters’ Pamphlet.

6 U.S. Const, art. I, § 2, cl. 2 provides:

No Person shall be a Representative who shall not have attained to the age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall he chosen.

7 See note 9, infra.

8 The original term limit qualification applicable to the state treasurer was deleted by Amendment 31 in 1956. See Laws of 1955, 34th Leg., S.J.R. No. 6, at 1861, approved Nov. 6, 1956.

9 Wash. Const, art. XI, § 7, was repealed by Amendment 22 in 1948. See Laws of 1947, 30th Leg., H.J.R. No. 4, at 1385, approved Nov. 2, 1948.

10 Amicus PLF argues disqualifications from office for felons, minimum age requirements, durational residency requirements, and antinepotism requirements are all examples of valid restrictions on candidacies. We express no view on such restrictions, but note the examples cited by PLF do not support a disposition of this case different from the one we announce today. The disqualification for ex-felons is a constitutional directive in Washington, Wash. Const, art;. VI, § 3 (amend. 83), and qualifications such as minimum age or durational residency requirements were debated as constitutional qualifications for state officers at the 1889 convention. Journal at 589-90. These qualifications do not address the question of whether the state officer qualifications sections in the Washington Constitution are exclusive.

Furthermore, the cases cited by PLF from other jurisdictions are not in conflict with our disposition of this case. See, e.g., Stiles v. Blunt, 912 F.2d 260 (8th Cir. 1990), cert. denied, 499 U.S. 919, 111 S. Ct. 1307, 113 L. Ed. 2d 241 (1991) (upholding a Missouri constitutional age requirement for the constitutional office of state representative); Zielasko v. Ohio, 873 F.2d 957 (6th Cir. 1989) (upholding an Ohio constitutional age requirement for state judicial office). See also Sununu v. Stark, 383 F. Supp. 1287 (D.N.H. 1974), aff'd, 420 U.S. 958, 95 S. Ct. 1346, 43 L. Ed. 2d 435 (1975); Chimento v. Stark, 353 F. Supp. 1211 (D.N.H.), aff'd, 414 U.S. 802, 94 S. Ct. 125, 38 L. Ed. 2d 39 (1973) (upholding New Hampshire’s constitutionally imposed residency requirement for constitutional offices of state senator and governor, respectively).

The antinepotism requirement cited by PLF is inapposite. It is a Kentucky statutory requirement imposed on the statutorily created Board of Education by the Kentucky General Assembly which has oversight responsibility for education under the Kentucky Constitution. See Chapman v. Gorman, 839 S.W2d 232, 233-37 (Ky. 1992); Ky. Const. § 183; Ky. Rev. Stat. Ann. § 160.160 (Michie 1994).

11 We have often stated the initiative process, as a means by which the people can exercise directly the legislative authority to enact bills and laws, is limited in scope to subject matter which is legislative in nature. Ruano v. Spellman, 81 Wn.2d 820, 823, 505 P.2d 447 (1973); Seattle Bldg. & Constr. Trades Council v. City of Seattle, 94 Wn.2d 740, 748, 620 P.2d 82 (1980) (declaring initiative attempting to achieve something not within its power invalid); see also Leonard v. City of Bothell, 87 Wn.2d 847, 849-50, 557 P.2d 1306 (1976) (noting referendum elections are limited in scope to acts by a governmental body which are legislative in nature). Thus, the initiative power may not be used to amend the Constitution. Ford v. Logan, 79 Wn.2d 147, 156, 483 P.2d 1247 (1971); see also Philadelphia II v. Gregoire, 128 Wn.2d 707, 718, 911 P.2d 389, cert. denied, 519 U.S. 862, 117 S. Ct. 167, 136 L. Ed. 2d 109 (1996). See also Jefferey T. Even, Direct Democracy in Washington: A Discourse on the Peoples’ Powers of Initiative and Referendum, 32 Gonz. L. Rev. 247, 270 (1996-97) (the Washington initiative process is limited to legislative acts and does not include constitutional amendments).

12 In light of our disposition of the issue of improper additional qualifications to constitutional offices in violation of the Washington Constitution, we do not address the other arguments by the parties such as the impact of the Law on rights of expression, suffrage, free association, or equal treatment. See Leonard v. City of Spokane, 127 Wn.2d 194, 202, 897 P.2d 358 (1995).