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April 2002

Re:       SPECIAL REPORT: The Washington Supreme Court Makes Annexation Difficult and Chooses Equality Over Property Rights 

You may also find this special report and other information on the internet at:   www.teichertlaw.com 

Dear Friend of the Teichert Law Office: 

            The Washington Supreme Court’s decision of last month in Grant County Fire Protection District No. 5 v. Moses Lake (“Grant County Fire”),[i] has dramatically altered the landscape of rules under which municipalities may extend their boundaries to take in new subdivisions and developments.  The Court’s interesting rationale, steeped in political theory, has an infinite number of potential applications both inside and outside the realm of land use planning.   

BACKGROUND LAW 

            The Washington State Legislature provided two methods whereby lands could be annexed to a city.   First, the conventional method of annexation was by election, and the second was by petition.[ii]  The petition method of annexation was to be initiated by a notice of intent to petition signed by the owners of at least ten percent of the value of all of the property within the proposed annexation.[iii]   If the City Council accepted the notice, owners of a larger percentage of the value of the affected land were required to sign the petition before the proposal could be considered for final approval by the City Council.[iv]   

BACKGROUND FACTS 

            Two municipal corporations had entered Extraterritorial Utility Extension Agreements with corporate property owners, in exchange for a waiver of the corporations’ rights to object to any future annexation by the cities.   Grant County Fire Protection District No. 5 objected to the annexation.

LEGAL ISSUES AND RULINGS 

1.         The petition method of annexation does not violate the citizen’s voting rights under the Constitution of Washington 

            The Constitution of Washington, Article I, Section 19 reads: 

All elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage. 

The Supreme Court of Washington does not interpret this provision to mandate direct democracy in every political decision, nor to “require that ‘voters may go to the polls at any time and vote on any question they see fit.’”[v]  However, in previous cases the Supreme Court has held that a statute permitting property owners to prevent an annexation election would be an unconstitutional infringement of voting rights because it would indirectly restrict the voting right to a certain class of people.  The Supreme Court did not find that problem in the Grant County Fire case because the petition method did not exclude the opportunity for an annexation election, nor did it provide property owners with an opportunity to block an annexation election.  It simply provided an alternative method whereby property owners could pursue annexation.   

2.         The petition method of annexation does not violate the equal protection requirements of the federal Constitution 

            The equal protection requirement is not as simple as treating all people as equals or avoiding discrimination of any kind.   Our system does not, and never has, treated murderers, thieves, and drug dealers the same as the law-abiding citizen.   Almost all legislation imposes special burdens or confers benefits upon some class of people and not others.[vi]   

The idea of equal protection (or at least our judicial cases interpreting it) is that the law shouldn’t make distinctions between people on the basis of prohibited considerations, such as race or color.  The Washington Supreme Court has said that classifications of people “must treat similarly situated people equally[.]”[vii]   While the Court does not consider property owners and people who lack property as “similarly situated,” it does find that “landowners and other residents are similarly situated with respect to their interest in whether the land they own or live on is annexed into a city” because “[a]nnexation will affect government services, regulation, and property tax levels.”[viii]   

            Discrimination between similarly situated people is not automatically a violation of equal protection.   The courts will be especially strict in insisting on equality where legislation (1) uses a “suspect class” such as race or color, or  (2) where the classification “infringes on a fundamental right.”[ix]  The Supreme Court found that the petition method of annexation did not involve a suspect classification.   The Court further found that the petition method did not impair the fundamental right to vote, because it merely provided property owners with a method to initiate the annexation procedure--not to decide the outcome of that procedure.    

            The Supreme Court further held that, although the petition method discriminates in favor of persons owning more valuable property, this discrimination was rational because owners of more valuable properties had a greater stake in the annexation than owners of less valuable properties. 

3.         The petition method of annexation is held to violate the Washington Constitution’s requirement of equal privileges and immunities for all citizens 

            The Privileges and Immunities Clause of Washington’s Constitution is as follows: 

No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations. 

The Supreme Court has recently held that the effect of this language was “substantially similar to the [federal Constitution’s] equal protection clause[.]”[x]  This inevitably means that the Supreme Court is faced with the problem of defining what legislative classifications run afoul of the kind of equality demanded by the Washington Constitution, because the text itself is ambiguous.[xi]    

            In the Grant County Fire case, the Supreme Court found an important structural difference between the equality provisions of the Washington Constitution and the federal Constitution.   The Court explained this difference as follows: 

The behavior proscribed by the federal constitution is to 'deny to any person within its jurisdiction the equal protection of the laws,' whereas the state constitution forbids granting 'privileges or immunities which upon the same terms shall not equally belong to all citizens.'  Thus, whereas the federal constitution is concerned with majoritarian threats of invidious discrimination, the state constitution protects against laws serving private interests to the detriment of the majority.  .  .  .  [T]his difference in emphasis suggests that under certain circumstances the state constitution gives greater protection. 

Thus, one might expect that the state provision would have a harder 'bite' where a small class is given a special benefit, with the burden spread among the majority.  On the other hand, the Equal Protection Clause would bite harder where majority interests are advanced at the expense of minority interests. 

This language essentially means that the Washington Constitution fears aristocracy more than democracy.  Its framers were concerned about “undue political influence exercised by those with large concentrations of wealth, which they feared more than they feared oppression by the majority.”[xiii]   Put another way, the Washington Constitution has greater sensitivity to unequal treatment “when the threat is not of majoritarian tyranny but of a special benefit to a minority and when the issue concerns favoritism rather than discrimination.”[xiv]  The Washington equality provision was intended to prevent favoritism or special treatment for certain persons or classes, rather than to prevent discrimination against certain persons or classes.  Literally speaking, discriminating in favor of one person or class is also to discriminate against others and visa versa.  However, as the Supreme Court pointed out, the emphasis of the two provisions is different.  The federal constitution looks for measures disadvantaging certain groups based on suspect legislative classifications.  The Washington Constitution looks for measures favoring certain groups based on suspect legislative classifications. 

The Supreme Court found that a legislative classification would not violate the equality requirement of the Washington Constitution if it: (1) applied alike to all members of a class, and (2) the definition of the class was reasonable.   The Court found that the right to petition the government was a “fundamental” right under the Washington Constitution, while acknowledging that it was not fundamental under the federal Constitution.  It also found that this right was not afforded on equal terms to lesser value property owners and non-property owning residents of the area to be annexed.  The Court found that these non-property owning residents and owners of less valuable property were “similarly situated” to owners of more highly valued property.[xv]  On this basis, the Supreme Court held that the classification used in the petition method of annexation was not reasonable.  The Supreme Court said, “[t]he petition method of annexation offers privileges to a favored minority and is therefore unconstitutional.”[xvi]

SUMMARY AND CONCLUSIONS 

Before the Grant County Fire case, the petition method of annexation permitted a city council to bring land within its jurisdiction if the owners of a fixed percentage of the value of the land signed a petition in support of the annexation.  This system provided greater influence to owners of higher value property. 

The Supreme Court found that the petition method did not violate the right to vote under the Washington Constitution, because an election was also a recognized method of initiating annexation proceedings.   The Court also found that the petition method’s favoritism of high value owners did not violate the federal Constitution’s equal protection requirement, because it was rational for legislation to favor those who had a higher stake in the decision than the general public. 

However, the Supreme Court found that the petition method of annexation was unconstitutional under the Washington Constitution’s requirement of equal privileges and immunities for all citizens.  In ruling that high value landowners, low-value landowners, and non-landowners within an annexation were similarly situated (and thus entitled to equal treatment), the Court interpreted the Washington Constitution’s equality requirement to be more fearful of favoritism of a privileged minority than discrimination against an oppressed minority.  The Court also found that the right to petition the government was a fundamental right under the Washington Constitution.  Therefore, legislation limiting the right of petition to owners of higher value property offered special privileges to a favored minority and was unconstitutional. 

I agree that the right to petition the government is a fundamental right.  In fact, I have long disliked the United States Supreme Court’s approach of characterizing some constitutional rights as fundamental and others as not fundamental.[xvii]  I also agree that the primary emphasis of the equality requirement in the Washington Constitution is to prevent special benefits from being afforded to privileged minorities.  However, it is not that simple.   As a member of the bar, my law license makes me a member of a privileged minority.  The same can be said of engineers, teachers and other professionals.  Virtually every legislative enactment provides benefits to some people and burdens others. 

If the Washington Supreme Court has decided that ownership of property is a suspect classification--and that any law providing unique benefits to property owners is (at least presumptively) unconstitutional—then property rights are in jeopardy.  The right of ownership is, itself, the right of a person or entity to be favored over the rest of the public in the enjoyment of that property.   James Madison described the danger that pure democracy poses to rights of property:

[T]he danger to the holders of property cannot be disguised, if they be undefended against a majority without property.  Bodies of men are not less swayed by interest than individuals, and are less controlled by the dread of reproach and the other motives felt by individuals.  Hence the liability of rights of property, and of the impartiality of laws affecting it, to be violated by legislative majorities having an interest, real or supposed, in the injustice.[xviii] 

While the ownership of property should confer no legal benefits unrelated to that property, it ought to provide the owner with special privileges respecting the property itself.  This is where the Supreme Court of Washington may have gone wrong.   As Madison said: 

[I]t would seem unreasonable to extend the right [to participate in government] so far as to give [those without property], when they become a majority, a power of legislation over the landed property without the consent of the proprietors.  Some shield against the invasion of their rights would not be out of place in a just and provident system of Government.[xix] 

This statement seems particularly applicable to our problem, because it insists on the consent of the property owners to legislate over their land. However, the issue is not as simple as it may seem at first blush.  Madison also understood that “persons and property are the two great subjects on which Governments are to act[.]”[xx]  A system that only takes property into account ignores the rights of persons.  While the property owners in an area have the most at stake in an annexation decision, the decision alters the political system under which all of the residents will live, have police and fire protection, and pay taxes.  While arguing in favor of liberalizing the property ownership requirement for voting at the Virginia Constitutional Convention, Madison said that “[a] government resting on a minority is an aristocracy and not a Republic[.]”[xxi]

The Supreme Court had a difficult task in making its decision.  Although I have not found a truly satisfying answer, I do not believe that the petition method should have been found unconstitutional.  The city council retained authority under that method to make the final decision regarding annexation.  The council represents the general public’s interest, and is the mechanism by which favoritism in annexation decisions ought to be checked.  While this does not provide non-propertied persons in an annexed area with larger voice than the general public, their vested interests in and commitment to the specific area are not as great as those that actually own the land.  They are more able than those with ownership in land to vote with their feet and move elsewhere if they object to living within the city.   The right to petition for inclusion of one’s property in a political jurisdiction is a right incident to ownership itself.

            My analysis has, thus far, focused on the long-term implications of the Grant County Fire decision for private property rights.  It also presents enormous short-term problems.  The Supreme Court admitted that “[s]ince its enactment, Washington cities have most frequently used the petition method of annexation because the election method has been found to be ‘extremely cumbersome.’”[xxii]  I do not know how many petition method annexations have taken place in Washington since that method became available in 1945.  However, the number of annexes that may be rendered void or voidable is staggering.  Could people living in improperly annexed areas demand city tax and assessment refunds, with interest, because the city was without jurisdiction to impose such taxes or assessments?  Does the fact that some areas were improperly annexed call in question the results of currently valid elections, where people in unconstitutionally annexed areas voted as residents of the cities, and may have determined the results?  By what legal authority can the cities now collect utility assessments in areas where city infrastructure has been extended in reliance on annexations?   

These questions and problems will be addressed in future cases and, most likely, by corrective legislation.  The only currently valid method of re-annexation of the unconstitutionally annexed areas is the election method, which the Supreme Court concedes is too cumbersome to address the problems of growth in Washington’s metropolitan areas.  If a new petition method is enacted, the Supreme Court will insist that it be granted “on an equal basis to all similarly situated parties” including non-property owning residents and owners of less valuable property.[xxiii]  This is, essentially, a one person-one vote rule; where all residents of an area to be annexed have equal say in whether to petition for the annexation.  I predict that the Washington legislature will enact such a provision shortly.    

THIS NEWSLETTER 

I sent this newsletter because you, or someone you know, believed that you would benefit from occasionally receiving information about developments in the field of land use and planning.[xxiv]  If you know of anyone else who might like a free subscription to this newsletter, please let me know by telephone or email.  Please include your friend’s full name and mailing address. 

I hope that this newsletter was helpful to you.  If you have an idea for a future article, or would like to author an article yourself, please feel free to communicate with me using any of the information in this letterhead.   

                                                                        Sincere Regards,

                                                                        JEFFREY B. TEICHERT

                                                                        Attorney at Law