The City of Bellingham denied an application by Ron Sorenson to run for a position on a board of freeholders, who were to draft a new city charter, on the ground that Sorenson owned no real property in the city. The city acted pursuant to relevant Washington statutory and constitutional requirements. In a declaratory judgment proceeding brought by Sorenson, the superior court upheld the validity of the city's action. Sorenson now appeals.
Sorenson's lack of ownership of property in the city is the sole basis of his disqualification. The constitutional question presented on appeal is whether the Bellingham ordinance conditioning qualification for office on property ownership violates the equal protection clause of the fourteenth amendment to the United States Constitution. We hold that it does.
A pivotal question is the determination of what standard is to be applied to determine whether the Washington laws and state constitution invidiously discriminate against nonproperty owners. The test differs depending upon the interests affected and the classification involved. On one hand, courts have given special treatment to interests they deem fundamental and have required the state to show a "compelling interest" to justify classification in these areas. Shapiro v. Thompson, 394 U.S. 618, 22 L.Ed.2d 600, 89 S.Ct. 1322 (1969); Kramer v. Union Free School Dist. 15, 395 U.S. 621,
In areas dealing primarily with economic regulation, the court has upheld classifications, on federal constitutional grounds, unless the classifications are wholly irrelevant to the achievement of a valid state objective. Turner v. Fouche, supra; Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 91 L.Ed. 1093, 67 S.Ct. 910 (1947); McGowan v. Maryland, 366 U.S. 420, 6 L.Ed.2d 393, 81 S.Ct. 1101 (1961). This has been a recognition of the fact that, in areas of economic regulation, classification may depend on local conditions upon which the court is not as well informed. It is, as well, a recognition of the superior legislative procedures for gathering information. Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 81 L.Ed. 1245, 57 S.Ct. 868, 109 A.L.R. 1327 (1937); Madden v. Kentucky, 309 U.S. 83, 84 L.Ed. 590, 60 S.Ct. 406, 125 A.L.R. 1383 (1940); Clark v. Dwyer, 56 Wn.2d 425, 353 P.2d 941 (1960). In addition, the presumption of constitutionality and the approval given rational classifications in areas not affecting fundamental interests is based on the assumption that the institutions of state government are structured so as to fairly represent all the people. "However, when the challenge to the statute is in effect a challenge of this basic assumption, the assumption can no longer serve as the basis for presuming constitutionality." Kramer v. Union Free School Dist. 15, supra at 628.
In Kramer, the Supreme Court justified a special scrutiny of voting cases on the ground that voting is preservative of other basic civil and political rights and that any unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government. As emphasized by the court in Dunn v. Blumstein, supra at
The court declined to decide in Turner whether to apply the compelling interest test in cases involving restrictions on qualification for office. Turner involved a limitation of school board membership to freeholders and this limitation was challenged as violative of the equal protection clause of the Fourteenth Amendment. It was held that, even if a less stringent standard was applied, the classification rested on grounds wholly irrelevant to a valid state objective.
An additional reason for choosing the compelling interest test is that, where a candidate representative of a viewpoint of affected voters is prevented from running, those voters who support him have lost an opportunity to cast their votes effectively. Williams v. Rhodes, supra. The majority may not burden the voting rights of a minority and, as was recognized in cases involving apportionment
Citizens who are bona fide residents either purchase or fail to purchase property in a given community for a variety of reasons. It would seem that, to the extent purchase of property is deferred in a community for reasons involving the desire of a resident to be free to travel, a compelling state interest is required to invade that right. A person desiring to be free to travel could meet all the requirements for valid residency but not wish to be encumbered by the restraints of property ownership.
The basic premise that landowners are more directly involved in the vitality of a city has been directly attacked in Turner where the court noted that lack of ownership of realty does not establish a lack of attachment to the community. However reasonable the assumption is that those who do own realty possess such an attachment, the state may not rationally presume that that quality is necessarily wanting in all citizens of the county whose estates are less than freehold. Turner v. Fouche, 396 U.S. 346, 364, 24 L.Ed.2d 567, 90 S.Ct. 532 (1970). "In a society such as ours, characterized by its `mobility' and `anonymity' ... a landowner is no more likely to be permanently established in a town — and, by that token, better qualified to govern — than one who is not a property owner." Landes v. North Hempstead, 20 N.Y.2d 417, 421, 284 N.Y.S.2d 441, 231 N.E.2d 120 (1967).
There are several other valid reasons for questioning the assumption that ownership of property in some way better qualifies an officeholder to guide the destinies of a city than one who is a nonproperty owner. Renters suffer from property taxes indirectly through rent increases; if their poverty forces them to rent, they have as much stake in the prosperity of their community as property-owning residents inasmuch as they are unable to move and may well be the first to suffer. Renters, indirectly affected by taxes in the form of increased rent, are just as interested as landowners in keeping a vital growing tax base and in the wise use of tax money. Finally, citizens may not always act strictly on the basis of their own monetary interests and the interests of propertied and nonpropertied citizens need not be antithetical. Comment, Equal Protection and Property
The nature of the remedy requested by Sorenson requires some discussion. On September 16, 1971, Sorenson filed a motion for an order restraining the city from accepting any more candidates for the position of freeholder, closing the filings of candidates or holding any election pursuant thereto. From the record before us, this motion was apparently denied and not further pursued. On the next day, a complaint was filed asking for a declaratory judgment holding the ordinance unconstitutional and void. He did not ask for other specific relief in the complaint except to pray for "such other and further relief as the Court may deem fit and proper." The cause was heard on September 24, 1971, and findings of fact, conclusions of law and judgment signed on October 20, 1971. Notice of appeal was filed, and the election held on November 2, 1971.
After the complaint asking for a declaratory judgment was filed and following the court's adverse ruling, Sorenson at no time requested affirmative relief which would have
The use of declaratory judgment to determine rights in this matter without a course of remedy is entirely appropriate.
And, at page 14:
We have previously enumerated the elements of justiciability necessary to render an issue susceptible to declaratory relief pursuant to RCW 7.24.
Our cases in which we have declined to render advisory opinions are not contrary to this view. These cases have found one or more elements of our requirements of justiciability lacking. DeGrief v. Seattle, 50 Wn.2d 1, 297 P.2d 940 (1956), is typical of these cases. In that case, the court declined to render a declaratory judgment because the plaintiff failed to show he had an existing right or interest in the particular statute he was asking the court to rule upon.
At the time of the original action, the parties had an existing and genuine, as distinguished from a theoretical right or interest, in the question at hand inasmuch as Sorenson was directly affected by the city's action. The judgment of the court could effectively operate, as distinguished from a purely political, administrative, philosophical, or academic conclusion, in that the judgment determined Sorenson's dispute with the city. The judicial determination of the controversy, but for this appeal, would have had the
In the instant case, the real merits of the controversy remain unsettled; namely, whether requiring property ownership as a condition to qualify for office violates the
However, where, as here, a plaintiff must choose between declaratory relief or the harsh remedy of blocking or overturning an election, thereby jeopardizing a needed charter review, we conclude the alternative remedies to a declaratory judgment are not adequate.
Declaratory judgment is available to a plaintiff as an alternative to an unnecessarily stringent or harsh remedy. Columbia Pictures Corp. v. DeToth, 26 Cal.2d 753, 161 P.2d 217, 162 A.L.R. 747 (1945).
HAMILTON, C.J., FINLEY, ROSELLINI, HUNTER, STAFFORD, and WRIGHT, JJ., concur. NEILL, J. (concurring)
I agree with the result reached in the majority opinion. The freeholder requirement of the Bellingham ordinance is contra to the holding of the United States Supreme Court in Turner v. Fouche, 396 U.S. 346, 24 L.Ed.2d 567, 90 S.Ct. 532 (1970). I would limit our reasoning and conclusion to that proposition. I am not in accord with some of the overly-broad, general statements in the majority opinion as to restrictions on eligibility for public office. Nor do I believe that the "right to travel" is in any manner involved in this case.
HALE, J., concurs with NEILL, J.
RCW 35.22.140. "On the petition of a number of registered voters of a city equal to twenty-five percent of the total votes cast at the last preceding city election, the city council of a charter city shall, or without such petition may, cause an election to be held for the purpose of electing a board of fifteen freeholders for the purpose of preparing a new charter for the city by altering, revising, adding to or repealing the existing charter including all amendments thereto. The members of the board of freeholders must be qualified electors and must have been residents in the city for a period of at least two years prior to their election. At such election the proposition of whether or not a board of freeholders shall be created at all shall be separately stated on the ballots and unless a majority of the votes cast upon that proposition favor it, no further steps shall be taken in the proceedings."
RCW 35.22.050. "Whenever the population of a city is ten thousand or more, the legislative authority thereof shall provide by ordinance for an election to be held therein for the purpose of electing fifteen freeholders for the purpose of framing a charter for the city. The members of the board of freeholders must be qualified electors and must have been residents of the city for a period of at least two years prior to their election."