Sunday, March 19, 2006

Term Limits Opinion by Bob Dick

Bob Dick is one of the attorneys from the Pierce County Prosecuting Attorney's office who has been assigned to assist the Charter Review Commission. The posting below is an email Dick sent to the Commission.


(Commission Chair) Bertie (Enslow) asked that we review cases regarding unconstitutionality of term limits and advise the Commission on limitations on the Charter Review Commission's discretion in recommending imposition of term limits in county charter provisions.

In the opinion of the Washington Supreme Court in Gerberding v. Munro, 134 Wash. 2d 188, 949 P.2d 1366 (1998) the Court held that term limits may not be imposed upon constitutional officers of the state of Washington where qualifications for the office are set forth in the constitution, because those qualifications are presumed to be exclusive, absent constitutional amendment. As a result, in our opinion, a County charter may not impose term limits upon constitutional officers for whom qualifications are set by the constitution. This would include the constitutional offices of judges, prosecuting attorneys and superintendent of schools.

1991 Op. Atty Gen. Wash. No. 22 opined that county and city charters could impose term limitations upon purely county officers (excluding the prosecuting attorney, judges and superintendent of schools) in addition to qualifications found elsewhere in state law. This opinion preceded the Gerberding case, which drew a different conclusion for constitutional officers than the Supreme Court had followed for local municipal officers in State ex. rel. Griffiths v. Superior Court, 177 Wash. 619, 33 P.2d 94 (1934), where it held that statutory limitations imposed only minimum qualifications, and were not intended by the Legislature to be the exclusive list of qualifications a municipality might impose. The Supreme Court's majority opinion in Gerberding fails to mention or overrule State ex. rel. Griffiths v. Superior Court though it draws a different conclusion upon similar facts, as pointed out by the dissent in Gerberding. Under the circumstances, it is our opinion that a County charter may impose term limits upon non-constitutional county officials, because State ex. rel. Griffiths v. Superior Court has not been overruled, even though the reasons for that opinion have been eroded by the more recent opinion in Gerberding.

2 Comments:

At 9:07 PM, Anonymous Mark Adams said...

Kelly,
I can't make it to the next meeting but would like to comment on a recent mailing that included the text of Proposal No. 2 re term limits.

Without taking a stance on the desirability of term limits, as a lawyer I can tell you this proposal needs editing. It first says that no person shall be allowed to serve in county elective office for more than two 4-years terms in the same position -- for a total of 8 years, which I understand. But then it says: "No person shall serve more than sixteen years in any County position." Well, which is it -- 8 years in any county elective office/position, or 16 years? ("Any" means "any one" of something.)

I submit that the proposed new sentence is fatally ambigous. Perhaps what the drafters intended to say was: "No person shall serve more than sixteen years in any combination of county elective offices." The idea, presumably, is to prevent elected officials from simply switching chairs when their term in one office expires -- something that has happened often in Pierce County.

May I suggest that you, or sombody, point out this drafting ambiguity to the rest of the group?

Regards, Mark Adams, Gig Harbor

 
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