Filed Washington State Court of Appeals Division Two
March 14, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II JEFFERY ARISTOTLE PECORARO, No. 58058-6-II
Appellant,
v. UNPUBLISHED OPINION
STATE OF WASHINGTON,
Respondent.
LEE, J. — Jeffery A. Pecoraro appeals the superior court’s order granting summary
judgment in favor of the State and dismissing his declaratory judgment action seeking to have
Substitute Senate Bill 5753 (SSB 5753) declared unconstitutional. Pecoraro argues that SSB 5753
is unconstitutional because it removes a citizenship requirement for persons appointed to serve on
certain health regulatory bodies.
The superior court properly granted summary judgment in favor of the State. Accordingly,
we affirm the superior court’s order granting summary judgment in favor of the State.
FACTS
In March 2022, the legislature passed SSB 5753. SUBSTITUTE S.B (S.S.B.) 5753, 67th
Leg., Reg. Sess. (Wash. 2022). On March 30, the Governor signed the bill into law. LAWS OF
2022, ch. 240. As relevant here, SSB 5753 removed the citizenship requirement for members No. 58058-6-II
appointed to several health regulatory boards in the state.1 See e.g. S.S.B. 5753 § 2 (“Members
must be ((citizens of the United States and)) residents of this state.”).
On April 25, Pecoraro filed a declaratory judgment action, alleging SSB 5753 was
unconstitutional because the Washington Constitution requires state officers to be United States
citizens. Pecoraro’s complaint relied on article III, section 25 of the Washington Constitution,
which requires state officers to be United States citizens.2
Pecoraro then filed a motion for summary judgment. In his motion for summary judgment,
Pecoraro argued that there are political rights which prevent noncitizens from participating in
government—essentially United States citizens have the right to be governed only by other United
States citizens.
The superior court ruled that there was no genuine issue of material fact and the State was
entitled to judgment as a matter of law. Therefore, the superior court granted summary judgment
to the State.
Pecoraro appeals.
1 For reference, the legislature removed the citizenship requirement for members serving on the following boards: Dental Quality Assurance Commission, Board of Nursing Home Administrators, Veterinary Board of Governors, Examining Board of Psychology, Pharmacy Quality Assurance Commission, Optometry Board, Board of Osteopathic Medicine and Surgery, Orthotics and Prosthetics Advisory Committee, Chiropractic Quality Assurance Commission, Nursing Care Quality Assurance Commission, and Washington Medical Commission. S.S.B. 5753 §§ 2, 4, 7, 10, 13, 23, 27, 30, 31, 32, 33. 2 In State ex rel. Tattersall v. Yelle, 52 Wn.2d 856, 864, 329 P.2d 841 (1958), our Supreme Court held that the citizenship requirement for state officers in article III, section 25 “appl[ies] only to the elected ‘state officers’ named in Art. III, § 1,” specifically governor, lieutenant governor, secretary of state, treasurer, auditor, attorney general, superintendent of public instruction, and commissioner of public lands. On appeal, Pecoraro only argues that SSB 5753 infringes on “citizens’ political and due process rights” to avoid revisiting Tattersall. Br. of Appellant at 1. Because Pecoraro has abandoned his claim that SSB 5753 is unconstitutional under article III, section 25, we only address his argument that SSB 5753 violates his political and due process right to be governed only by United States citizens.
2 No. 58058-6-II
ANALYSIS
A. SSB 5753
Pecoraro argues that SSB 5753 is unconstitutional because due process provides that
citizens have the unenumerated political right to only be governed by United States citizens. We
disagree.
We review orders on summary judgment de novo. Frausto v. Yakima HMA, LLC, 188
Wn.2d 227, 231, 393 P.3d 776 (2017). Summary judgment is appropriate if there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c).
When the facts are not in dispute, the court may order summary judgment in favor of the
nonmoving party. See Impecoven v. Dep’t of Revenue, 120 Wn.2d 357, 365, 841 P.2d 752 (1992).
Article I, section 30 of the Washington Constitution provides, “The enumeration in this
Constitution of certain rights shall not be construed to deny others retained by the people.” And
article I, section 32 provides, “A frequent recurrence to fundamental principles is essential to the
security of individual right and the perpetuity of free government.” Neither of these provisions
provide a right to only be governed by United States’ citizens.
However, Pecoraro asserts these provisions incorporate the unenumerated political right to
be governed by United States’ citizens recognized in Foley v. Connelie, 435 U.S. 291, 98 S. Ct.
1067, 55 L. Ed. 2d 287 (1978) and Herriott v. City of Seattle, 81 Wn.2d 48, 500 P.2d 101 (1972).
But neither of these cases establish the broad political right Pecoraro claims.
In Foley, the United States Supreme Court held that a statute requiring members of the
state police force to be United States citizens did not violate the equal protection clause. 435 U.S.
at 299-300. The Court recognized that “the police function is essentially a description of one of
the basic functions of government” that required a very high degree of judgment and discretion.
3 No. 58058-6-II
Id. at 297-98. This important participation in government function justified requiring police
officers to be United States citizens if the legislature chose to do so. Id. at 300 (“A State may,
therefore, consonant with the Constitution, confine the performance of this important public
responsibility to citizens of the United States.”) (emphasis added).
Similarly, in Herriott, our Supreme Court addressed whether the City of Seattle could
impose a United States citizenship requirement in order for transit operators to apply to take the
civil service examination. 81 Wn.2d at 50. Our Supreme Court held the citizenship requirement
violated equal protection because the city failed to show a reasonable relationship between the
citizenship requirements and qualification to take the civil service examination. Id. at 61. The
court recognized that there were political rights—the right to vote, to hold elective office, and to
serve as a juror—that distinguish aliens from citizens. Id. at 61-62. When the characteristics of a
particular position requires exercise of political rights or fidelity of allegiance to this country, the
government can establish a rational relationship between the position and a citizenship
requirement, if the government chooses to impose one. Id. at 63. Because transit operator required
neither the exercise of political rights nor fidelity of allegiance, the city’s citizenship requirement
violated equal protection. Id.
Neither Foley nor Herriott establish that citizenship is a requirement for non-elected
positions that require the execution of basic functions of government or political rights. Similarly,
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Filed Washington State Court of Appeals Division Two
March 14, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II JEFFERY ARISTOTLE PECORARO, No. 58058-6-II
Appellant,
v. UNPUBLISHED OPINION
STATE OF WASHINGTON,
Respondent.
LEE, J. — Jeffery A. Pecoraro appeals the superior court’s order granting summary
judgment in favor of the State and dismissing his declaratory judgment action seeking to have
Substitute Senate Bill 5753 (SSB 5753) declared unconstitutional. Pecoraro argues that SSB 5753
is unconstitutional because it removes a citizenship requirement for persons appointed to serve on
certain health regulatory bodies.
The superior court properly granted summary judgment in favor of the State. Accordingly,
we affirm the superior court’s order granting summary judgment in favor of the State.
FACTS
In March 2022, the legislature passed SSB 5753. SUBSTITUTE S.B (S.S.B.) 5753, 67th
Leg., Reg. Sess. (Wash. 2022). On March 30, the Governor signed the bill into law. LAWS OF
2022, ch. 240. As relevant here, SSB 5753 removed the citizenship requirement for members No. 58058-6-II
appointed to several health regulatory boards in the state.1 See e.g. S.S.B. 5753 § 2 (“Members
must be ((citizens of the United States and)) residents of this state.”).
On April 25, Pecoraro filed a declaratory judgment action, alleging SSB 5753 was
unconstitutional because the Washington Constitution requires state officers to be United States
citizens. Pecoraro’s complaint relied on article III, section 25 of the Washington Constitution,
which requires state officers to be United States citizens.2
Pecoraro then filed a motion for summary judgment. In his motion for summary judgment,
Pecoraro argued that there are political rights which prevent noncitizens from participating in
government—essentially United States citizens have the right to be governed only by other United
States citizens.
The superior court ruled that there was no genuine issue of material fact and the State was
entitled to judgment as a matter of law. Therefore, the superior court granted summary judgment
to the State.
Pecoraro appeals.
1 For reference, the legislature removed the citizenship requirement for members serving on the following boards: Dental Quality Assurance Commission, Board of Nursing Home Administrators, Veterinary Board of Governors, Examining Board of Psychology, Pharmacy Quality Assurance Commission, Optometry Board, Board of Osteopathic Medicine and Surgery, Orthotics and Prosthetics Advisory Committee, Chiropractic Quality Assurance Commission, Nursing Care Quality Assurance Commission, and Washington Medical Commission. S.S.B. 5753 §§ 2, 4, 7, 10, 13, 23, 27, 30, 31, 32, 33. 2 In State ex rel. Tattersall v. Yelle, 52 Wn.2d 856, 864, 329 P.2d 841 (1958), our Supreme Court held that the citizenship requirement for state officers in article III, section 25 “appl[ies] only to the elected ‘state officers’ named in Art. III, § 1,” specifically governor, lieutenant governor, secretary of state, treasurer, auditor, attorney general, superintendent of public instruction, and commissioner of public lands. On appeal, Pecoraro only argues that SSB 5753 infringes on “citizens’ political and due process rights” to avoid revisiting Tattersall. Br. of Appellant at 1. Because Pecoraro has abandoned his claim that SSB 5753 is unconstitutional under article III, section 25, we only address his argument that SSB 5753 violates his political and due process right to be governed only by United States citizens.
2 No. 58058-6-II
ANALYSIS
A. SSB 5753
Pecoraro argues that SSB 5753 is unconstitutional because due process provides that
citizens have the unenumerated political right to only be governed by United States citizens. We
disagree.
We review orders on summary judgment de novo. Frausto v. Yakima HMA, LLC, 188
Wn.2d 227, 231, 393 P.3d 776 (2017). Summary judgment is appropriate if there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c).
When the facts are not in dispute, the court may order summary judgment in favor of the
nonmoving party. See Impecoven v. Dep’t of Revenue, 120 Wn.2d 357, 365, 841 P.2d 752 (1992).
Article I, section 30 of the Washington Constitution provides, “The enumeration in this
Constitution of certain rights shall not be construed to deny others retained by the people.” And
article I, section 32 provides, “A frequent recurrence to fundamental principles is essential to the
security of individual right and the perpetuity of free government.” Neither of these provisions
provide a right to only be governed by United States’ citizens.
However, Pecoraro asserts these provisions incorporate the unenumerated political right to
be governed by United States’ citizens recognized in Foley v. Connelie, 435 U.S. 291, 98 S. Ct.
1067, 55 L. Ed. 2d 287 (1978) and Herriott v. City of Seattle, 81 Wn.2d 48, 500 P.2d 101 (1972).
But neither of these cases establish the broad political right Pecoraro claims.
In Foley, the United States Supreme Court held that a statute requiring members of the
state police force to be United States citizens did not violate the equal protection clause. 435 U.S.
at 299-300. The Court recognized that “the police function is essentially a description of one of
the basic functions of government” that required a very high degree of judgment and discretion.
3 No. 58058-6-II
Id. at 297-98. This important participation in government function justified requiring police
officers to be United States citizens if the legislature chose to do so. Id. at 300 (“A State may,
therefore, consonant with the Constitution, confine the performance of this important public
responsibility to citizens of the United States.”) (emphasis added).
Similarly, in Herriott, our Supreme Court addressed whether the City of Seattle could
impose a United States citizenship requirement in order for transit operators to apply to take the
civil service examination. 81 Wn.2d at 50. Our Supreme Court held the citizenship requirement
violated equal protection because the city failed to show a reasonable relationship between the
citizenship requirements and qualification to take the civil service examination. Id. at 61. The
court recognized that there were political rights—the right to vote, to hold elective office, and to
serve as a juror—that distinguish aliens from citizens. Id. at 61-62. When the characteristics of a
particular position requires exercise of political rights or fidelity of allegiance to this country, the
government can establish a rational relationship between the position and a citizenship
requirement, if the government chooses to impose one. Id. at 63. Because transit operator required
neither the exercise of political rights nor fidelity of allegiance, the city’s citizenship requirement
violated equal protection. Id.
Neither Foley nor Herriott establish that citizenship is a requirement for non-elected
positions that require the execution of basic functions of government or political rights. Similarly,
neither case establishes that United States citizens have the exclusive right to be governed only by
United States citizens. Instead, these cases establish that participation in the function of
government or exercise of political rights can justify a citizenship requirement if the legislature
chooses to impose one.
4 No. 58058-6-II
Here, the legislature has exercised its discretion and determined that a citizenship
requirement to serve on health regulatory boards is not necessary. This is a decision within the
legislature’s right to make and is not restrained by constitutional requirements. See State ex rel.
Tattersall v. Yelle, 52 Wn.2d 856, 861-62, 329 P.2d 841 (1958) (“The state constitution is not a
grant, but a restriction, of legislative power, and the power of the legislature to enact laws is
unrestrained except where it is expressly or inferentially prohibited by the state or Federal
constitution.”). Accordingly, the superior court properly granted summary judgment in favor of
the State.
B. ATTORNEY FEES ON APPEAL
Pecoraro, a self-represented litigant, requests attorney fees and costs under RAP 18.1 and
RAP 14.2. Under RAP 18.1(a), attorney fees may be awarded on appeal if applicable law grants
a party the right to recover reasonable attorney fees. However, self-represented litigants are not
entitled to recover attorney fees. See West v. Thurston County, 168 Wn. App. 162, 195, 275 P.3d
1200 (2012).
Under RAP 14.2, costs may be awarded to the party that substantially prevails on appeal.
Because we affirm the superior court’s decision, Pecoraro is not the substantially prevailing party.
Accordingly, we deny Pecoraro’s request for attorney fees and costs on appeal.
We affirm the superior court’s order granting summary judgment in favor of the State.3
3 In his reply brief, Pecoraro moved to stay the superior court’s judgment in order to prevent SSB 5753 from becoming effective. Under RAP 17.4(d), “A party may include in a brief only a motion which, if granted, would preclude hearing the case on the merits.” Accordingly, it is improper to include a motion to stay the superior court in in a reply brief, and we do not consider Pecoraro’s motion to stay.
5 No. 58058-6-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Lee, J. We concur:
Cruser, A.C.J.
Price, J.