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

A. Introduction

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.


RP 78-79.

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), infra.

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.

III. ARGUMENT

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 been established:

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 provisions."


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 power.

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 amendment failed.

The next proposed amendment was especially revealing of the intent of the Framers.

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:

FOR SECESSION.

* * *

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 will:

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 cited.


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 in Washington.

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 or Overruled


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 stated:

[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 wrong.

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 People.

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 law."


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 self-executing.

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 self-executing:

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 self-executing.

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 [1895] . . .. 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 power").

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


1. Preface

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 7.24.010, .020.

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 required.

"'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 actually vote.

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 danger.


(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 voted.


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, Defilipis says:

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 cases.

IV. CONCLUSION

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 earlier:

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 dismissal.

DATED this ____ day of May, 2002.

Reed Longyear Malnati
Ahrens & Strickland, PS


by __________________________________

Michael T. Schein, WSBA 21646


Attorneys for Appellants

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