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Washington Supreme Court: 5 county commissioner bill is constitutional

UPDATED: Fri., Aug. 21, 2020

Spokane County Commissioners Josh Kerns and Al French vote to refer the appointment of a new colleague to the governor during a 2017 meeting.  (kathy plonka)
Spokane County Commissioners Josh Kerns and Al French vote to refer the appointment of a new colleague to the governor during a 2017 meeting. (kathy plonka)
By Jim Camden and Rebecca White The Spokesman-Review

OLYMPIA – A law that expands the number of county commissioners in Spokane from three to five is constitutional, the state Supreme Court ruled Thursday in a unanimous decision.

The 2018 law, which will expand the board of commissioners in 2022, properly creates a “uniform system” the state Constitution requires for county government, Justice Susan Owens wrote.

“Contrary to Spokane County’s belief, these terms (uniform system) do not mean that each county in Washington needs to have the exact same setup as the neighboring county,” Owens wrote.

The law sets up a constitutionally acceptable system that requires noncharter counties below 400,000 to have three commissioners, and those above that population to have five, Owens wrote. County voters can also set up a different government structure than the three- or five-member commissioner board by drafting and approving a charter.

Spokane is the only county in Washington with more than 400,000 people but no charter. County officials and others had argued that because it is the only county currently affected by the law, it was unconstitutional.

The decision means the county “will move forward from here looking to elect five commissioners in 2022,” Commissioner Mary Kuney said. “They made their decision, I’m not going to second guess it.”

County Commissioner Josh Kerns said he expected the county would eventually lose, but said commissioners taking the case to court before the law goes into effect was better than future candidates suing over the legislation in 2022.

“Regardless of what side of this issue you were on, it needed to run its course through the court system,” he said. “This is the only way we were going to settle this argument.”

Kerns argued the court battle also didn’t cost taxpayers anything, because litigation costs were covered by the Washington State Association of Counties.

The state Constitution sets up county government with a three-person board of commissioners and requires counties to have a “uniform” system unless voters adopt a charter to change it.

Spokane has had three commissioners, with each running in their districts in a primary but countywide in the general election, since statehood. Officials have discussed the pros and cons of expanding the board of commissioners for years as Spokane’s population grew and issues became more complex.

The Legislature approved a bill in 1990 to let voters expand to five commissioners in counties with more than 300,000 people.

Voters said no in 2015, but supporters of the five-commissioner proposal argued that some voters were worried about how the new commissioner districts would be drawn.

In 2018 the Legislature rewrote the law to require a bipartisan commission to draw the lines, patterned after Washington’s congressional and legislative redistricting system. It also required all counties without charters and more than 400,000 people to expand their board to five members.

The bill had bipartisan support in the Spokane-area delegation, and received backing from Thurston County lawmakers, the next largest noncharter county with nearly 300,000 people.

In a statement released Thursday, Rep. Marcus Riccelli, D-Spokane, who sponsored the bill, said it would lead to citizens having a more direct voice in government.

“For larger counties like Spokane, moving to five commissioners ensures citizens get a more responsive government that matches growing populations,” Riccelli said. “Community members know specifically who to contact to express their opinions and who to hold accountable.”

Two Republicans who co-sponsored the bill, Mike Volz, R-Spokane, and Jeff Holy, R-Cheney, argued it would prevent future litigation over representation, district lines and elections.

In a statement released Thursday afternoon, Spokane County Commissioner Al French said the decision marked a “sad day” for the people of the county and the state.

“This ruling opens the door for the Legislature to establish random metrics that ignore the will of the people in individual counties and could circumvent protections provided to voters in the state Constitution,” French said.

French, former Commissioner John Roskelley and the Washington Association of Counties were the plaintiffs behind the suit. Their argument relied in part on a 1915 ruling in which the court invalidated a law that allowed some counties to abolish their coroner systems.

But the Constitution was later amended to allow the Legislature to “classify counties by population,” Owens wrote.

“The Legislature may properly classify the counties by population for any purpose relating to county government, so long as these classifications are made via ‘general laws’ and do not violate other constitutional provisions,” she added.

That’s what the Legislature did with the five-commissioner bill. The court upheld Spokane County Superior Court Judge Maryann Moreno’s ruling last August that dismissed the case because the Legislature was within its powers to make such a change.

French said he didn’t plan to give up on having three commissioners and would work to start a process to write a charter for Spokane County.

“Every county in the state that has (become) a chartered county, it was the citizens of that county that made that choice,” he said. “Our citizens should have the same choice and that’s what I’m going to try and work to give them.”

But when Spokane voters were given a choice before, they said ultimately said “No.” In 1992, after years of complaints that unincorporated suburban areas weren’t getting adequate representation while Spokane city and county were duplicating some services, voters approved a process of electing people known as freeholders to develop a charter. They spent nearly three years and eventually proposed a system that combined some elements of the county and the city of Spokane. Voters turned it down, with 58% voting no.

Since that time, Spokane Valley and Liberty Lake formed cities.

County officials broached the prospect of another charter effort in 2007, and again in 2015. Neither got as far as asking voters to elect freeholders.

French said he had not yet talked to Kerns or Kuney to see if they were also interested in pursuing a freeholder process.

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