Cunningham v. Municipality of Metropolitan Seattle

I.

INTRODUCTION

The plaintiffs, registered voters in King County, Washington, challenge the constitutionality of the method by which the governing council of the Municipality of Metropolitan Seattle (“Metro”) is selected. Metro is the entity in charge of water pollution abatement and public transportation throughout the county. The defendants are Metro and its current chairperson. Both sides have moved for summary judgment. All briefs, affidavits, and other materials filed by the parties, the amicus curiae brief of the Attorney General of the State of Washington, and the oral arguments of counsel, have been fully considered. The parties agree that no genuine issue of material fact exists and that the case may be decided on the cross-motions under Fed.R.Civ.P. 56.

II.

THE ONE PERSON, ONE VOTE PRINCIPLE

The plaintiffs’ primary challenge to the selection of the Metro Council is brought under the one person, one vote principle of the Equal Protection Clause of the Fourteenth Amendment. The plaintiffs, as voters living in parts of the county that are under-represented if the principle applies, have standing to sue, and a justiciable controversy is presented. See Baker v. Carr, 369 U.S. 186, 204-37, 82 S.Ct. 691, 703-721, 7 L.Ed.2d 663 (1962). The court has jurisdiction under 28 U.S.C. §§ 1331 and 1343.

In a series of landmark cases the Supreme Court has held that where state or local government officials are elected, equal protection requires that the votes of citizens be of equal weight. No person’s vote may be reduced in value, compared to the votes of others, because of where he or she happens to live in the electoral district.

In Reynolds v. Sims, 377 U.S. 533, 567, 84 S.Ct. 1362, 1384, 12 L.Ed.2d 506 (1964), the Court struck down Alabama’s method of selecting its state legislature, stating:

To the extent that a citizen’s right to vote is debased, he is that much less a citizen. The fact that an individual lives here or there is not a legitimate reason for overweighting or diluting the efficacy of his vote. The complexions of societies and civilizations change, often with amazing rapidity. A nation once primarily rural in character becomes predominantly urban. Representation schemes *888 once fair and equitable become archaic and outdated. But the basic principle of representative government remains, and must remain, unchanged — the weight of a citizen’s vote cannot be made to depend on where he lives.

In Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970), the Court applied the one person, one vote rule to a state statutory formula for electing junior college trustees, stating:

This Court has consistently held in a long series of cases, that in situations involving elections, the States are required to insure that each person’s vote counts as much, insofar as it is practicable, as any other person’s. We have applied this principle in congressional elections, state legislative elections, and local elections. The consistent theme of those decisions is that the right to vote in an election is protected by the United States Constitution against dilution or debasement. While the particular offices involved in these cases have varied, in each case a constant factor is the decision of the government to have citizens participate individually by ballot in the selection of certain people who carry out governmental functions.

Id. at 54, 90 S.Ct. at 794 (footnote omitted).

Most recently, in Board of Estimate v. Morris, 489 U.S. 688, 109 S.Ct. 1433, 103 L.Ed.2d 717 (1989), the Court applied the principle to New York City’s Board of Estimate, whose eight members were not elected as such but took office upon their election to other positions. The members were the city’s mayor, comptroller, and president of the city council (the three city-wide members), and the presidents of the five boroughs in the city. Holding the selection system unconstitutional because the five boroughs were of widely differing population sizes, and the citizens’ votes were therefore unequally weighted as to all but the city-wide members, the Court said:

These [earlier] cases are based on the propositions that in this country the people govern themselves through their elected representatives and that “each and every citizen has an inalienable right to full and effective participation in the political processes” of the legislative bodies of the Nation, state, or locality as the case may be. Reynolds v. Sims, 377 U.S., at 565, 84 S.Ct., at 1378. Since “[m]ost citizens can achieve this participation only as qualified voters through the election of legislators to represent them,” full and effective participation requires “that each citizen have an equally effective voice in the election of members of his ... legislature.” Ibid. As Daniel Webster once said, “the right to choose a representative is every man’s portion of sovereign power.” Luther v. Borden, 48 U.S. (7 How.) 1, 30, 12 L.Ed. 581 (1849) (statement of counsel).

Id. 109 S.Ct. at 1438.

It does not matter whether the governmental powers possessed be deemed “legislative” or "administrative”; if the body possessing them is elected, the one person, one vote principle applies. Hadley, 397 U.S. at 55-56, 90 S.Ct. at 794-95. The one person, one vote principle does not forbid the states to use appointed, as distinguished from elected, bodies to carry out governmental functions, nor does it preclude experiments in new forms of local government. Sailors v. Board of Education, 387 U.S. 105, 110-111, 87 S.Ct. 1549, 1553, 18 L.Ed.2d 650 (1967). It also does not apply to an elected body whose functions are so narrow as to be not “governmental.” Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719, 727-30, 93 S.Ct. 1224, 1229-31, 35 L.Ed.2d 659 (1973); see also Ball v. James, 451 U.S. 355, 364, 101 S.Ct. 1811, 68 L.Ed.2d 150 (1981).

The heart of the matter was stated by the Supreme Court in Hadley, 397 U.S. at 56, 90 S.Ct. at 795:

[WJhenever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election, and when members of an elected body are chosen from separate districts, *889 each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials.

The questions in the present case come down to these:

Does Metro possess governmental powers?

Is the Metro Council an elected body?

If the one person, one vote principle applies, does the method of selecting the Metro Council violate it?

If the answer to the preceding question is yes, what should the remedy be?

III.

METRO’S SUCCESS, ACCEPTANCE, AND FUTURE PROSPECTS

The arguments in Metro’s behalf have emphasized its successes and have warned that a change in its structure may jeopardize its future. There is no doubt that Metro has been a great historic achievement. It was formed in 1958, before the Supreme Court’s decisions applying the one person, one vote rule to state and local governments. Its original aim was to bring local governments together in a federation to clean up pollution in Lake Washington. In this Metro succeeded, and it has gone on to implement a water pollution abatement and sewage disposal program and a major public transportation system. The voters of King County have rejected a proposal to turn Metro’s functions over to the county government.

The difficulty with these arguments is that efficiency and acceptance cannot justify a denial of equal protection of the laws. The citizens who criticize Metro’s operations, and who seek to make it more democratic and responsive (as they see it), may be a minority, but the constitutional issue cannot be decided by a show of hands. That the buses run on time cannot justify a dilution of any citizen’s right to vote.

Arguments of the same nature — success, acceptance, and the risks of change — were made to the Supreme Court in behalf of New York’s Board of Estimate. See 109 S.Ct. at 1442. The Court rejected them, saying it was “not persuaded by arguments that explain the debasement of citizens’ constitutional right to equal franchise based on exigencies of history or convenience.” Id. at 1442 n. 10. In an earlier case, the Court stated: “An individual’s constitutionally protected right to cast an equally weighted vote cannot be denied even by a vote of a majority of a State’s electorate.” Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713, 736, 84 S.Ct. 1459, 1473, 12 L.Ed.2d 632 (1964).

There are always risks in change, but often worse ones in rigidity. There is no reason to believe that the vigorous governments and citizens of this region will fail to make Metro a continuing success if a change in the method of selecting its council is required to meet constitutional standards.

IV.

METRO’S POSSESSION OF GOVERNMENTAL POWERS

Metro is the only municipal corporation ever to exist under its authorizing statute, RCW Ch. 35.58.

The statute grants to the Metro Council legislative, financial, and other decision-making powers to carry out its functions of water pollution abatement and public transportation throughout King County. The broad purpose of Metro, according to the statute, is to “provide for the people ... the means of obtaining essential services not adequately provided by existing agencies of local government.” RCW § 35.58.010.

By statute, “every legislative act of the [Metro] Council of a general or permanent nature shall be by resolution.” RCW § 35.58.130. The act grants to Metro “all powers which are necessary to carry out the purposes of the metropolitan municipal corporation and to perform authorized metropolitan functions.” RCW § 35.58.180.

*890 The statute recognizes that Metro is empowered to perform governmental functions, stating: “All functions of local government which are not authorized as provided in this chapter to be performed by a metropolitan municipal corporation, shall continue to be performed by the counties, cities and special districts....” RCW § 35.58.180.

Metro is authorized to operate a mass transit system and water pollution abatement facilities. RCW §§ 35.58.050(3), —.200(2). It sets minimum standards for water pollution abatement facilities connected to its systems. Local governments with connected systems may not construct abatement facilities “without first securing [Metro’s] approval.” RCW 35.58.200(5). Metro is empowered to “take all actions necessary” to secure the benefits, and meet the requirements, of federal and state water pollution programs developed under the federal water pollution control act, 33 U.S.C. § 1251 et seq. It can compel its component agencies to comply with the requirements of national discharge elimination system permits issued to Metro or to the component agencies. RCW § 35.58.200(7).

Several powers are authorized for Metro’s use in financing its operations: fixing rates and charges for local agencies’ use of Metro water pollution abatement facilities; imposing charges directly on sewage system users who connect to Metro sewage facilities or establish new sewer service; appropriating general funds; levying sales taxes (with voter approval); levying excise or business and occupation taxes; issuing general obligation bonds for transit or water pollution abatement activities (some bonds require voter approval); and appropriating funds from its budget. RCW §§ 35.58.116, -200(4), -.2721, -.273, -.450, -.570; 35.95.030, -.040; 82.14.045, -.050, -.060.

Metro has the power to acquire by condemnation local governments’ mass transit assets and sewage disposal and storm water drainage facilities, with certain limitations. RCW §§ 35.58.200(2), -.240(2), -.250. It can prepare comprehensive water pollution abatement and transportation plans for the county. RCW §§ 35.58.200(1), -.240(1).

Metro also possesses certain police powers. It can adopt rules and regulations “as shall be necessary or proper to enable it to carry out authorized metropolitan functions” and can provide penalties for their violation, enforceable in King County Superior Court. RCW § 35.58.360. It can require certain King County political subdivisions to discharge sewage into Metro facilities, if it first declares that such action is necessary for public safety, health, and welfare. RCW § 35.58.200(3).

Metro currently exercises, or has exercised, many of these powers. It operates, in a county with more than 1.4 million residents, a county-wide mass transit system and a sewage system. Metro has contracted for the construction of facilities for its systems, sometimes amid public controversy. It charges connected local government entities for sewage services, and imposes a direct charge on new users of its sewage system. It has levied sales taxes (with voter approval) and a motor vehicle excise tax, and has issued millions of dollars worth of bonds. Its current annual budget is more than half a billion dollars. It has condemned property to support its activities. It has adopted and amended a comprehensive water pollution abatement plan, and is planning future mass transit systems to accommodate population growth. It has established programs to combat drug-abuse problems related to its transit operations.

The powers actually exercised by Metro are enough to place it clearly within the scope of the one person, one vote principle if its governing body is elected. However, the powers possessed but not exercised — or not yet exercised — must also be included in the analysis. Cf. Hadley, 397 U.S. at 53, 90 S.Ct. at 793.

Metro’s reliance on Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 727-30, 93 S.Ct. 1224, 1229-31, 35 L.Ed.2d 659 (1973), is misplaced. The Court there carved out an exception to the one person, one vote prin *891 ciple for official bodies that do not exercise “governmental” functions. 410 U.S. at 727-30, 93 S.Ct. at 1229-31. The statute in question permitted only landowners to vote in electing directors of a water district whose function was to provide water, chiefly used in farming by a few corporations, to a large area having a small number of individual residents. Id. at 723-25, 93 S.Ct. at 1227-28. The Court noted that the district provided “no other general public services such as schools, housing, transportation, utilities, roads, or anything else of the type ordinarily financed by a municipal body.” Id. at 728-29, 93 S.Ct. at 1229-30 (emphasis added). In Ball v. James, 451 U.S. 355, 364, 101 S.Ct. 1811, 1817, 68 L.Ed.2d 150 (1981), the Court described a two-part test for the Salyer exception: (1) the body’s purpose must be sufficiently narrow and limited, and (2) the effects of its activities must be borne disproportionately by a few. See also Associated Enters., Inc. v. Toltec Watershed Improvement Dist., 410 U.S. 743, 744-45, 93 S.Ct. 1237, 1237-38, 35 L.Ed.2d 675 (1973) (upholding constitutionality of Wyoming watershed improvement district under two-part test).

Metro, with its broad governmental powers and important impact on the lives of all residents of King County, cannot qualify for the Salyer exception. The Supreme Court has found governmental bodies with far more limited functions to be within the scope of the one person, one vote principle. See, e.g., Hadley, 397 U.S. at 53-54, 90 S.Ct. at 793-94 (junior college board had powers “general enough and [with] sufficient impact throughout the district to justify the conclusion that” one person, one vote doctrine should apply).

Y.

STATUS OF THE METRO COUNCIL AS AN ELECTED BODY

Equal protection of the laws requires that the one person, one vote principle be honored if a governmental body is elected, not if it is appointed. Hadley, 397 U.S. at 54, 56, 58, 90 S.Ct. at 794, 795, 796. Plaintiffs contend that the Metro Council is elected. Defendants argue that it is appointed. The two sides agree that the question turns on whether a majority of the board members are deemed elected or appointed. Cf. Oliver v. Board of Educ., 306 F.Supp. 1286, 1289 (S.D.N.Y.1969) (applying one person-one vote doctrine to board with five elected and two appointed members).

The Metro Council has forty-two members. They are selected by a method prescribed by RCW § 35.58.120, set out in Appendix A.

It is uncontested that the King County Executive is an elected member of the Council. The statute provides that one member “shall be the elected county executive of the central county.” RCW § 35.58.120(1). Thus, while a candidate for executive is not listed on the ballot as a candidate for the Metro Council, he is in fact running for both offices. The result is exactly the same as if the ballot title read “County Executive/Member of Metro Council.” In a similar situation the Supreme Court last year held the one person, one vote requirement applicable, stating: “That the members of New York City’s Board of Estimate trigger this constitutional safeguard is certain. All eight officials become members as a matter of law upon their various elections.” Board of Estimate, 109 S.Ct. at 1438.

For the same reason the mayors of five cities must be held to be elected members of the Council. The statute provides for one member from each component city with a population of fifteen thousand or more “who shall be the mayor of such city, if such city shall have the mayor-council form of government.” RCW § 35.58.120(4). The mayors of the five cities in this category — Seattle, Renton, Auburn, Kent, and Redmond — all “become members as a matter of law upon their various elections.” Accordingly they must be deemed elected members of the Council.

All nine members of the King County Council also become members of the Metro Council automatically upon their election. The statute provides for one *892 member for each “county council district which shall contain fifteen thousand or more persons residing within the metropolitan municipal corporation, who shall be the county commissioner or county councilman from such district.” RCW § 35.58.120(2). The King County Council districts at all relevant times have contained far more than fifteen thousand residents each. Thus when a person runs for the County Council he or she is also running for the Metro Council. Under the Board of Estimate rule these persons are elected members of the Metro Council.

All nine members of the Seattle City Council also serve as members of the Metro Council. The statute provides ¡for:

One additional member selected by the city council of each component city containing a population of fifteen thousand or more for each fifty thousand population over and above the first fifteen thousand, such members to be selected from such city council until all councilmen are members and thereafter to be selected from other officers of such city.

RCW § 35.58.120(6).

While the statute says that these members will be “selected from such city council until all councilmen are members,” there is in reality no selection as to Seattle. The city’s population is, and has been, such that each city council member automatically becomes a member of the Metro Council. The result is no different than if the statute provided expressly that each candidate for the Seattle City Council would also be running for the Metro Council and would assume both offices if successful. See Board of Estimate, 109 S.Ct. at 1438 (“when residents of the city’s five boroughs ... elect their respective borough presidents, the elections decide each borough’s representatives on the board”).

Metro has argued that the population of Seattle might drop so as to reduce the number of city council members who would serve on the Metro Council, and that there would then be a “selection” within the city council. But that is not the reality. All nine Seattle City Council members have automatically become Metro Council members for many years. Given the city’s 1989 population of 497,200 and its continuing growth, the statute guarantees that this will remain the case. Whether it provides this explicitly or by means of a formula written to fit Seattle’s population statistics is of no moment. “[T]he Constitution,” the Supreme Court has noted, “forbids ‘sophisticated as well as simpleminded modes of discrimination.’ ” Reynolds, 377 U.S. at 563, 84 S.Ct. at 1382 (quoting Lane v. Wilson, 307 U.S. 268, 275, 59 S.Ct. 872, 876, 83 L.Ed. 1281 (1939)).

The foregoing categories — the county executive, mayors, King County Council members, and Seattle City Council members — add up to twenty-four members who are elected to the Metro Council because they take office automatically upon election to their county or city positions. They are chosen by the voters at the polls. There is no step in their designation, no act of selection, beyond the voters’ decision to place them in office. These Metro Council members come within the Supreme Court’s holding twenty years ago in Hadley, restated last year in Board of Estimate: “Whenever a state or local government decides to select persons by popular election to perform governmental functions_” Hadley, 397 U.S. at 56, 90 S.Ct. at 795, quoted in Board of Estimate, 109 S.Ct. at 1437. These twenty-four are “selected by popular election.”

The remaining eighteen members of the Metro Council must be deemed appointed, although the status of some is clearer than that of others.

The parties agree that the chairman of the Council, who is chosen by its members and must hold no other public office (RCW § 35.58.120(8)), holds office by appointment.

Eight members are chosen by the County Council to represent unincorporated areas of the county (one such member for each council district containing fifteen thousand or more persons residing in unincorporated areas). RCW § 35.58.120(3). These are also appointed rather than elected.

*893 The remaining nine members are public officials who do not take seats on the Metro Council upon their election to other offices, but rather are chosen from a pool of public officials. These are:

—Five representatives from cities, with a population of at least fifteen thousand, which do not have the mayor-council form of government. These are “selected by, and from, the mayor and city council of each of such cities.” RCW § 35.58.120(4).

—One representative of all cities in the county having less than fifteen thousand in population. This member is chosen by and from the mayors of these smaller cities. RCW § 35.58.120(5).

—One member selected from its membership by the city council of Bellevue (the only city, other than Seattle, having at least sixty-five thousand people and thus coming within the scope of RCW § 35.58.120(6)).

—Two members selected by and from certain sewer and water district commissioners. RCW § 35.58.120(7).

In Sailors v. Board of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967), the Court considered a one person, one vote challenge to a county school board. The voters elected local school boards, and these sent one delegate each to meet and choose the county board. Finding that this system “is basically appointive rather than elective,” id. at 109, 87 S.Ct. at 1552, the Court held that the one person, one vote principle did not apply: “[T]he membership of the county board is not determined, directly or indirectly, through an election in which the residents of the county participate.” Id. at 109 n. 6, 87 S.Ct. at 1553 n. 6; see also id. at 110-11, 87 S.Ct. at 1553.

In Sailors the delegates could select persons to serve on the county board who were not members of a local school board. Id. at 107, 87 S.Ct. at 1551. The situation is different as to the nine Metro Council members described above in that the selection is made from groups of elected officials. Are these, then, selected by appointment or by election? There is no reported case exactly in point. However, the reasoning of the Supreme Court decisions compels the conclusion that they are appointed. They do not, as in Board of Estimate, “become members as a matter of law upon their various elections.” 109 S.Ct. at 1438. There is an appointive step: the selection of these persons, and the non-selection of others, must be decided upon not by the voters but by others charged by law with the duty of choosing. That the appointment is made from a prescribed group of public officials does not make the office elective rather than appointive.

In summary, twenty-four of the forty-two Metro Council members are elected, and eighteen are appointed.

Since a majority of its members are elected, the Council must be held to be an elected body. Because it exercises governmental powers, the method of selecting it must comply with the one person, one vote principle. That being so, it is unnecessary to decide whether and how the principle might apply if only a minority of the Council’s members were elected.

VI.

VIOLATION OF THE ONE PERSON, ONE VOTE PRINCIPLE

The parties agree that if the one person, one vote principle applies, the current method of selecting the Metro Council violates it. The argument is over whether the plaintiffs’ calculation of the degree of disproportionate representation is flawed.

Disproportionality is calculated by a method set forth in Abate v. Mundt, 403 U.S. 182, 184 & n. 1, 91 S.Ct. 1904, 1906 & n. 1, 29 L.Ed.2d 399 (1971). Actual ratios of residents to representatives are compared to an ideal ratio, i.e., that which would exist if each resident’s vote had equal voting weight.

How to calculate disproportionate representation for government bodies that have both elected and appointed members appears to be a question of first impression.

*894 Although the district court in Oliver, supra, held that representation on such a mixed government body was disproportionate, it did not calculate the extent of deviation nor suggest a method of doing so. See Oliver v. Board of Educ., 306 F.Supp. 1286, 1289 (S.D.N.Y.1969). In Board of Estimate, the Court held that members of the board who were elected at large, as well as the borough presidents, had to be considered:

In calculating the deviation among districts, the relevant inquiry is whether “the vote of any citizen is approximately equal in weight to that of any other citizen,” the aim being to provide “fair and effective representation for all citizens.” Here the voters in each borough vote for the at-large members as well as their borough president, and they are also represented by those members. Hence in determining whether there is substantially equal voting power and representation, the citywide members are a major component in the calculation and should not be ignored.

109 S.Ct. at 1441-42 (citations omitted; quoting Reynolds, 377 U.S. at 565-66, 579, 84 S.Ct. at 1383-84, 1390).

Th