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Carlson v. San Juan County

Court of Appeals of Washington, Division 1

September 2, 2014

Michael Carlson et al., Appellants ,
v.
San Juan County et al., Respondents

Oral Argument February 24, 2014

Page 512

[Copyrighted Material Omitted]

Page 513

Appeal from San Juan Superior Court. Docket No: 13-2-05036-7. Judge signing: Honorable Stewart R Andrew. Judgment or order under review. Date filed: 03/20/2013.

Stephanie Johnson O'Day (of Law Offices of Stephanie Johnson O'Day ), and Nicholas Power, for appellants.

Robert W. Ferguson, Attorney General, and Jeffrey T. Even and Laura J. Watson, Deputy Solicitors General ; and Randall K. Gaylord, Prosecuting Attorney, for respondents.

Authored by Ann Schindler. Concurring: Stephen J. Dwyer, Michael S. Spearman.

OPINION

Page 514

Schindler, J.

[183 Wn.App. 358] ¶ 1 In the 2012 general election, the voters of San Juan County approved Proposition 1. Proposition 1 amended the San Juan County Home Rule Charter to reduce the number of county council members from six to three members, each residing in one of three unequal size residency districts but nominated and elected by the voters in an at-large countywide election. San Juan County residents Michael Carlson, Jerrold R. Gonce, Jeffrey Bossler, Richard Peterson, Marc Forlenza, and Gregory Ayers (collectively Carlson) appeal summary judgment dismissal of the complaint for declaratory and injunctive relief. Carlson contends Proposition 1 and the statutes that allow residency districts with unequal populations violate equal protection; due process, and article I, section 12 and article I, section 19 of the Washington State Constitution. Carlson also claims the Proposition 1 ballot title violates article II, section 19 of the Washington State Constitution, and Proposition 1 did not comply with former San Juan County Home [183 Wn.App. 359] Rule Charter article 8, section 8.31(3) (2005). Because there is no evidence that the residency districts with unequal populations either dilutes the strength of an identifiable element of the voting population or otherwise results in discrimination, we affirm summary judgment dismissal of the complaint for declaratory and injunctive relief.

FACTS

¶ 2 San Juan County (County) is comprised of several dozen islands located in the northwest corner of Washington. The largest islands are San Juan, Orcas, Lopez, and Shaw.

¶ 3 In 2005, the voters approved adoption of a Basic Home Rule Charter (Charter) " for the governance of San Juan County." The voters also approved an amendment that increased the number of council members from three to six, and created six legislative districts of " nearly equal populations," with each district nominating and electing a county council member. In addition, the voters approved establishing a charter review commission (CRC) elected from the six voting districts and " apportioned according to the population distribution" of that district. The amendment states the CRC members would be elected five years after the adoption of the Charter " to determine its adequacy and suitability to the needs of the County," make recommendations, and propose amendments.

¶ 4 The voters elected 21 CRC members in 2011. From January to May 2012, the CRC held weekly public meetings. Current and former elected officials and the public attended the meetings and testified. The CRC made a number of recommendations, including reducing the number of council members from six to three members, establishing three residency districts, and requiring nomination and election of the council members in an at-large countywide election. The CRC published detailed findings identifying the " problems with the existing Charter" and [183 Wn.App. 360] the proposed recommendations. The CRC found that a council with six members resulted in greater expense and delay, reduced accountability, undermined public confidence, and resulted in council members being unresponsive to residents outside their district. The findings state, in pertinent part:

Finding 1. Number of Council Members:
... .
1. A membership of six on the County's governing Council has resulted in greater expense than originally anticipated, in part because of the increasing expense of personnel benefits, but also because of greater overhead costs of office space, computer systems and staff support time ... .
2. A membership of six on the County's governing Council has resulted in the creation of closed committees of that body which has damaged public confidence in the transparency of County governance ... . Due to the limits set forth in the Open Meetings Act, a meeting of any two members of a three-person Council constitutes an official meeting ... . A legislative body of three results in all Council business being held in open meetings, providing for greater transparency to the citizens.
3. The Commission finds logically that the ability to make decisions in a group of three is more efficient than with six members. ... [T]he potential of deadlocked

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votes and extra time needed for decisions has been frustrating to the public and even to some sitting Council members. ...
... .
5. The nature of six part-time Council members from six districts, being oriented and guided in their jobs by an Administrator, has led to a leadership accountability vacuum resulting in inefficiency in county government and confusion about the role of Council members. (See also Finding 2 relating to countywide elections and Finding 5 relating to substituting a subordinate manager for a separate administrative branch.)
... .
7. The Commission believes that fewer Legislative positions will encourage greater competition in races, resulting in fewer uncontested races and more choices for voters.
[183 Wn.App. 361] ... .
9. There is a strong and well-understood tradition in Washington State, founded on the State Constitution (Article XI, Section 4) and practiced in San Juan County since its founding, that three elected legislators can represent the citizens and function in an efficient and just manner and bring the County together as a whole.
10. Under the current six-member Council system, three members can meet privately with staff and administrative personnel. This is because three members do not constitute a quorum of the Council. Nevertheless, the same three members, while not constituting a quorum, can block any action by the Council. This obstructive capacity is not possible with a three-member Council (see CRC minutes 2/25, Lovel Pratt). The Commission finds unpersuasive a justification for private meetings that allow wider latitude for expression by Council members than a public meeting would allow (see CRC minutes 2/3: Rich Peterson, 2/18: Patty Miller).
... .
Finding 2. Countywide Elections:
... .
1. The current six-member board, elected initially by district, has resulted in Council members being unresponsive to those living outside " their district," thereby impairing the Council's functions as a whole in responding to citizens' legitimate concerns ... .
2. Countywide elections will provide countywide accountability as all legislators are responsible to all county electors, thereby making political accountability and accessibility congruent with the legislators' legal obligations ... .
... .
Finding 3. County Council Residency Districts:
Although the Commission finds that, while countywide elections are preferable as assuring countywide concern and representation by each council member, one consequence, if uncured, could be election of all three council members from the island with the largest population. Accordingly, Council candidates are required to be nominated from separate residential [183 Wn.App. 362] districts, delineated in accordance with RCW 36.32.020 that accommodates the unique geographic nature of San Juan County and proved workable for over a hundred years prior to Charter adoption.[1]

¶ 5 The CRC proposed three Charter amendments for submission to the voters in the general election in November 2012. Proposition 1 reduced the number of county council members from six to three and created three residency districts with unequal populations. The smaller neighboring islands were incorporated into each of the residency districts. The three residency districts are District 1, San Juan Island and 15 neighboring islands with a population of 7,662; District 2, Orcas Island and 27 neighboring islands with a population of 5,387; and District 3, Lopez Island and Shaw Island and 19 neighboring islands with a population of 2,720.[2]

¶ 6 Proposition 2 clarified administrative and executive powers. Proposition 3

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specifically states that all meetings of the county council are subject to the state Open Public Meetings Act of 1971, chapter 42.30 RCW. The voters approved the proposed Charter amendments.

¶ 7 On December 4, 2012, Michael Carlson, a resident of San Juan Island; Jerrold R. Gonce, a resident of Lopez Island; and Jeffrey Bossler, a resident of Orcas Island (collectively Carlson), filed a complaint for declaratory and injunctive relief against San Juan County and the State of Washington. Carlson alleged Proposition 1 and the statutes that allow unequal size residency districts for island counties of less than 35,000 violated equal protection, due process, and article I, section 12 and article I, section 19 of the Washington State Constitution. Carlson also alleged the ballot title for the three propositions violated Washington State Constitution article ...


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