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Washington Supreme Court
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No. 63275-8
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931 P.2d 156, 131 Wash.2d 266, 1997.wa.7
<http://www.versuslaw.com>
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February 13, 1997
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THE CITY OF SEATTLE, A MUNICIPAL CORPORATION,
RESPONDENT,
v.
JAMES P. AND ANN MCCREADY, A MARITAL COMMUNITY;
GEORGE LOTT; MARV KAERCHER; AND ALL SIMILARLY SITUATED PERSONS,
APPELLANTS/DEFENDANTS, AND GREG MARSHALL; JOHN D. HANSEN; SIOBHAN STEWART;
KELS KOCH; JERRY ALLEN; AND ALL SIMILARLY SITUATED PERSONS,
APPELLANTS/DEFENDANTS SEATTLE MUNICIPAL COURT; OVID THOMPSON; ROSE MESEC
AND JOHN DOE MESEC, HER HUSBAND; MATT LAMP AND JANE DOE LAMP, HIS WIFE;
DANIEL SCULLY AND JANE DOE SCULLY, HIS WIFE; AND JOHN AND JANE DOE'S 1-10,
RESPONDENTS/DEFENDANTS.
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Appeal from Superior Court of King County. Docket No: 91-2-07056-3.
Date filed: 08/16/95. Judge signing: Hon. James W. Bates Jr.
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For Appellants: John M. Groen, Groen & Stephens, Bellevue,
Wa.
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For Respondents: Miriam M. Reed, Seattle, Wa.
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Authored by Charles W. Johnson. Concurring: Barbara Durham, James M.
Dolliver, Charles Z. Smith, Richard P. Guy, Gerry L. Alexander, Philip A.
Talmadge.
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The opinion of the court was delivered by: Johnson
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En Banc
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This is the third time this court has accepted review on issues
arising out of this cause of action. The genesis of this action began with
certain landlords' and tenants' (Appellants) resistance to the City of
Seattle's (City) Residential Housing Inspection Program (RHIP). The City
filed a declaratory judgment action, naming Appellants as Defendants, to
determine the constitutionality of the RHIP. Appellants filed a
counterclaim for, among other things, attorney fees incurred in defending
against the City's action under 42 U.S.C. sec. 1988 and/or on equitable
grounds. After the second of two appeals to this court, the trial court
granted the City's motion for summary judgment, denying Appellants' claim
for attorney fees. Appellants sought and we granted review of the trial
court's decision denying their claim for attorney fees. We reject the
suggestion that any of the inspection warrants were invalid under the
Fourth Amendment and, therefore, decline to award attorney fees under 42
U.S.C. sec. 1988. We also decline to award fees on equitable grounds
because none of the equitable exceptions to the American rule previously
recognized by this court apply to the facts here.
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FACTS
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The City of Seattle developed the RHIP to proactively identify code
violations in Seattle apartment buildings. *fn1
Under the RHIP, the City used statistical methods to identify buildings
which were likely to have serious violations. Tenants in those buildings
received a letter requesting their consent to a search of the building. If
the tenant did not consent, the City sought an inspection warrant. City of
Seattle v. McCready, 123 Wash. 2d 260, 264-65, 868 P.2d 134 (1994)
(McCready I). These warrants were not issued on probable cause to believe
a violation occurred. McCready I, 123 Wash. 2d at 272.
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The City brought an action against Appellants seeking a declaratory
judgment upholding the RHIP, and the issuance of inspection warrants for
various apartment buildings. The trial court issued four inspection
warrants but those warrants were immediately stayed. The City also
obtained search warrants based on probable cause for Appellants'
buildings, one of which was actually executed. The City searched some of
Appellants' buildings with tenant consent.
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Appellants defended against the declaratory judgment action and
brought counterclaims for trespass, damages and attorney fees under 42
U.S.C. sec.sec. 1983 and 1988, and declaratory relief. In the first appeal
arising from this action, McCready I, this court quashed four warrants
(hereinafter referred to as "inspection warrants") issued by King County
Superior Court under the RHIP. McCready I, 123 Wash. 2d 260, 868 P.2d
134. This court held a superior court lacks "the authority of law" to
issue a search warrant on less than probable cause absent a court rule or
statute. The court declined to address Appellants' attorney fees claims
finding the only issue currently before it was whether to quash the
warrants. McCready I, 123 Wash. 2d at 282-83.
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In City of Seattle v. McCready, 124 Wash. 2d 300, 877 P.2d 686
(1994) (McCready II), this court resolved three specific issues: (1)
under the Fourth Amendment and article I, section 7 tenants can consent to
an inspection of common areas and their dwelling area; (2) under article
I, section 7 a municipal court does not have the "authority of law" to
issue an administrative inspection warrant to search for evidence of
civil, rather than criminal, infractions; and (3) the two warrants based
on probable cause which were actually issued did not violate the Fourth
Amendment. McCready II, 124 Wash. 2d at 303-12. The court also denied
Appellants' claim for attorney fees under 42 U.S.C. sec.sec. 1983 and 1988
because there was no Fourth Amendment violation. McCready II, 124 Wash. 2d
at 312. However, the opinion dealt with attorney fees only as they
related to the two warrants issued with probable cause, and did not
address the claims based on the four inspection warrants quashed in
McCready I.
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Following McCready II, Appellants filed motions for summary judgment
in the trial court to recover attorney fees for defending the RHIP
declaratory judgment, quashing the inspection warrants, and challenging
the probable cause warrants. *fn2
The City responded by arguing all these claims had been dealt with in
McCready I and II. The trial court denied Appellants' motions and
dismissed all of their claims.
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We agree with Appellants that our prior opinions did not address
attorney fees under sec. 1988 for defending against the four inspection
warrants, nor did they address any of their equitable claims for attorney
fees. Despite this omission, we find Appellants are not entitled to
attorney fees under sec. 1988 because they have not demonstrated a
deprivation of their federal constitutional rights. We also find none of
the recognized equitable exceptions to the American rule allow for an
award of attorney fees in this case. Thus, we affirm the trial court's
grant of summary judgment in favor of the City.
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ATTORNEY FEES UNDER 42 U.S.C. sec. 1988
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Appellants seek an award of attorney fees under 42 U.S.C. sec. 1988
for defending the declaratory judgment action relating to the inspection
warrants. *fn3
This request for fees is necessarily based on the assumption Appellants
have established a violation of their federal constitutional rights.
Appellants rely on our decision in McCready I to establish that the
inspection warrants were contrary to the Fourth Amendment. That reliance
is misplaced.
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In McCready I we invalidated the inspection warrants, holding that
under article I, section 7, a superior court Judge did not have "authority
of law" to issue search warrants on less than traditional probable cause.
McCready I, 123 Wash. 2d at 280. While McCready I did not expressly
address the Fourth Amendment claims of Appellants, we noted that
Appellants argued for the rejection of the Fourth Amendment standards for
administrative inspections established in Camara v. Municipal Court, 387
U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). McCready I, 123 Wash.
2d at 268, 281. By arguing for their rejection, Appellants recognized
the application of the Camara standards to the RHIP. Thus, McCready I
implicitly recognized the RHIP met Camara's Fourth Amendment
standards.
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An explicit examination of the RHIP under Camara reaches this same
Conclusion. In Camara, the Supreme Court held that searches conducted
under administrative code enforcement programs do require warrants, but
such administrative warrants can be issued based on a less than
traditional probable cause standard. For purposes of administrative
searches conducted to enforce local building, health, or fire codes, the
Court stated:
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"'probable cause' to issue a warrant to inspect . . . exists if
reasonable legislative or administrative standards for conducting an area
inspection are satisfied with respect to a particular dwelling. Such
standards, which will vary with the municipal program being enforced, may
be based upon the passage of time, the nature of the building (e. g., a
multi-family apartment house), or the condition of the entire area, but
they will not necessarily depend upon specific knowledge of the condition
of the particular dwelling." Camara, 387 U.S. at 538; 4 Wayne R. LaFave,
Search & Seizure sec. 10.1(b) (3d ed. 1996).
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Under the RHIP, buildings are chosen for inspection based on certain
objective factors such as a building's age, assessed value, and number of
code violations in the past five years. McCready I, 123 Wash. 2d at
264. These factors mirror the reasonable Fourth Amendment "probable
cause" standards for inspection warrants outlined in Camara. *fn4
Thus, the inspection warrants did not violate Appellants' Fourth Amendment
rights. *fn5
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Appellants contend they are also entitled to an award of fees under 42
U.S.C. sec. 1988 for having prevailed on a pendent, nonconstitutional
theory. Under this theory, attorney fees may be awarded under sec. 1988
when the claimant presents a claim for which such fees are available but
ultimately prevails only on a pendent claim. Maher v. Gagne, 448 U.S. 122,
100 S. Ct. 2570, 65 L. Ed. 2d 653 (1980). Such awards are available where
the court does not reach the federal constitutional question, instead
relying on the nonconstitutional claim as dispositive. Hagans v. Lavine,
415 U.S. 528, 94 S. Ct. 1372, 39 L. Ed. 2d 577 (1974). However, fees are
not awarded on this basis where the court considers and rejects the
federal claim(s ). Mateyko v. Felix, 924 F.2d 824, 828 (9th Cir.
1990), cert. denied, 502 U.S. 814, 112 S. Ct. 65, 116 L. Ed. 2d 40
(1991). Because we have considered and rejected Appellants' argument that
the inspection warrants violated the Fourth Amendment, Appellants are not
entitled to attorney fees under sec. 1988's pendent claim
theory.
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ATTORNEY FEES ON EQUITABLE GROUNDS
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Appellants seek an award of attorney fees on equitable grounds for
defending the declaratory judgment action and resisting both the
inspection warrants and the probable cause warrants. Washington courts
traditionally follow the American rule in not awarding attorney fees as
costs absent a contract, statute, or recognized equitable exception.
Rettkowski v. Department of Ecology, 128 Wash. 2d 508, 514, 910 P.2d 462
(1996); State ex rel. Macri v. City of Bremerton, 8 Wash. 2d 93,
113-14, 111 P.2d 612 (1941).
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Before addressing equitable exceptions to the American rule, we first
consider whether the statutory proceeding provides for attorney fees in
this case. The first court action filed in this dispute was the City's
action seeking a declaratory judgment on the constitutionality of the
RHIP. Requests for declaratory relief are governed by the Uniform
Declaratory Judgments Act (UDJA), RCW 7.24. Attorney fees are not
provided for under the UDJA. Seattle School Dist. No. 1 v. State, 90 Wash.
2d 476, 540-41, 585 P.2d 71 (1978); RCW 7.24.100. In fact, in the
context of State initiated declaratory judgment actions regarding
constitutional issues, we have previously stated: "declaratory procedure
is peculiarly well suited to the judicial determination of controversies
concerning constitutional rights . . . ." Seattle School Dist. No. 1 v.
State, 90 Wash. 2d at 490. Thus, the fact this action began as a
declaratory judgment action brought by the City does not provide statutory
grounds for attorney fees, or a basis for creating a new equitable
exception.
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This court has explicitly recognized four equitable exceptions to the
American rule: (1) the common fund theory, Grein v. Cavano, 61 Wash. 2d
498, 505, 379 P.2d 209 (1963); (2) actions by a third person
subjecting a party to litigation, Wells v. Aetna Ins. Co., 60 Wash. 2d
880, 882-83, 376 P.2d 644 (1962); (3) bad faith or misconduct of a
party, Miotke v. City of Spokane, 101 Wash. 2d 307, 338, 678 P.2d 803
(1984); and (4) dissolving wrongfully issued temporary injunctions or
restraining orders, Cecil v. Dominy, 69 Wash. 2d 289, 291-94, 418 P.2d 233
(1966 ) ; Alderwood Assocs. v. Washington Envtl. Council, 96 Wash. 2d
230, 247, 635 P.2d 108 (1981). See generally Philip A. Talmadge,
Attorney Fees in Washington pt. 5 (1995). This court has also specifically
considered and rejected adopting the private attorney general theory as a
further equitable exception to the American rule. Blue Sky Advocates v.
State, 107 Wash. 2d 112, 122, 727 P.2d 644 (1986).
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While the traditional American rule relates to attorney fees as costs,
at least two of the recognized equitable exceptions award attorney fees as
damages. See, e.g., Cecil, 69 Wash. 2d at 291 (attorney fees as
damages in dissolving a wrongfully issued temporary injunction); Wells, 60
Wash. 2d at 882 (attorney fees as damages in wrongful action by a
third person subjecting a party to litigation). This court has also
authorized the award of attorney fees as damages in slander of title and
wrongful garnishment actions. Rorvig v. Douglas, 123 Wash. 2d 854, 873
P.2d 492 (1994) (slander of title action); James v. Cannell, 135 Wash.
80, 82-83, 237 P. 8 (1925) (wrongful garnishment action), aff'd, 139 Wash.
702, 246 P. 304 (1926). Thus, a more accurate statement of Washington's
American rule is attorney fees are not available as costs or damages
absent a contract, statute, or recognized ground in equity. *fn6
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Appellants argue they are entitled to attorney fees in defending the
inspection warrants and the probable cause warrants based on two equitable
exceptions: (1 ) protection of constitutional principles, and (2 )
dissolving wrongfully issued temporary injunctions. We address each
argument in turn.
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Protection of Constitutional Principles
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The protection of constitutional principles was listed, without
Discussion, as an equitable exception to the American rule in Miotke, 101
Wash. 2d at 340. Subsequently, two courts have listed, but not
discussed, protection of constitutional principles as an equitable
exception to the American rule. See Estate of Jordan v. Hartford Accident
& Indem. Co., 120 Wash. 2d 490, 509, 844 P.2d 403 (1993)
(Andersen, J., Concurring in part, Dissenting in part ) ; Dempere v.
Nelson, 76 Wash. App. 403, 886 P.2d 219 (1994), review denied, 126
Wash. 2d 1015, 894 P.2d 565 (1995). The phrase "protection of
constitutional principles" has never been articulated or applied as an
independent equitable exception to the American rule in this or any other
jurisdiction. The only material Discussion of the "protection of
constitutional principles" in the context of equitable awards of attorney
fees was as one of the rationales underlying a variation of the common
fund theory enunciated by this court in Weiss v. Bruno, 83 Wash. 2d 911,
914, 523 P.2d 915, 89 A.L.R.3d 681 (1974). See PUD No. 1 v. Kottsick,
86 Wash. 2d 388, 391, 545 P.2d 1 (1976); Smith v. Board of Walla Walla
County Comm'rs, 48 Wash. App. 303, 310-11, 738 P.2d 1076 (1987). *fn7
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The four requirements of the Weiss common fund exception are: "(1) a
successful suit brought by petitioners (2) challenging the expenditure of
public funds (3) made pursuant to patently unconstitutional legislative
and administrative actions (4) following a refusal by the appropriate
official and agency to maintain such a challenge." Weiss, 83 Wash. 2d at
914. This exception does not apply to the facts of this case because
appellants have not challenged the unconstitutional expenditure of public
funds. See Seattle School Dist. No. 1 v. State, 90 Wash. 2d at 544-45
(successful declaratory judgment action on constitutional grounds did not
entitle prevailing party to attorney fees because there was no challenge
to expenditure of public funds).
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Appellants argue these requirements are not the correct requirements
for the so-called protection of constitutional principles exception;
however, they offer no alternative definition for the exception nor an
alternative set of requirements. As stated above, this court has not
recognized an independent equitable exception to the American rule based
on the protection of constitutional principles.
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Appellants' request for attorney fees based on their successful
resistance to the RHIP is essentially a request for fees under the private
attorney general exception to the American rule. The private attorney
general exception allows for the award of attorney fees when a successful
litigant incurs considerable economic expense to effectuate an important
legislative policy benefiting a large class of citizens. Miotke, 101 Wash.
2d at 340. However, this court expressly rejected the private attorney
general exception in Blue Sky Advocates, 107 Wash. 2d at 122. Thus,
the private attorney general theory is not available to Appellants
here.
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Dissolving Wrongfully Issued Temporary Injunctions Appellants next
argue the quashing of an invalid warrant is analogous to dissolving a
wrongfully issued temporary injunction. This court has held attorney fees
are recoverable in an action where a trial on the merits has for its sole
purpose the determination of whether an injunction should be dissolved,
the injunction is dissolved, and a trial was the sole procedure available
to the party attempting to dissolve the temporary injunction. Cecil, 69
Wash. 2d at 293; Alderwood Assocs., 96 Wash. 2d at 247. If
dissolving the injunction is not the sole purpose of the trial, then
attorney fees are available only for services performed in dissolving the
temporary injunction. Cecil, 69 Wash. 2d at 293-94.
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The rationale supporting this exception starts from the premise that a
temporary injunction or restraining order prohibits an individual from
engaging in some given activity. See Alderwood Assocs., 96 Wash. 2d at
232 (restraining order prohibited the collection of signatures for a
referendum petition at a shopping mall ); Cecil, 69 Wash. 2d at 290
(injunction prohibited soliciting business within a competitor's
territory). The only option available to a party faced with a temporary
injunction or restraining order (other than submitting to the order) is to
take legal action. Thus, if the wrongfully enjoined party prevails in the
action to dissolve the temporary injunction, then attorney fees represent
the damages suffered from the injunction. Cecil, 69 Wash. 2d at 291-92
. The exceptions recognizing awards of attorney fees as damages are based
on a determination a wrongful act may leave another party with no choice
but to litigate. Rorvig, 123 Wash. 2d at 862.
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Because virtually all litigation compels a party's opponent to
litigate, Washington courts have narrowly limited the type of actions
where attorney fees are awarded as damages. Rorvig, 123 Wash. 2d at
861-63, 873 P.2d 492 (attorney fees awarded as damages in slander of
title action); Cecil, 69 Wash. 2d at 294 (attorney fee awarded as
damages in action to dissolve temporary injunction); Ritchie v. Markley,
23 Wash. App. 569, 597 P.2d 449 (1979) (attorney fees awarded as
damages for dissolving temporary injunction but not for trial on the
merits of the action following the dissolution), overruled on other
grounds by, Cowiche Canyon Conservancy v. Bosley, 118 Wash. 2d 801, 828
P.2d 549 (1992); James, 135 Wash at 82-83 (attorney fees awarded as
damages in wrongful garnishment action).
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Slander of title is the most recent and only type of action we have
added to the narrowly limited exception of attorney fees as damages since
Cecil v. Dominy in 1966. Rorvig, 123 Wash. 2d 854, 873 P.2d 492. We
based that addition upon the Restatement (Second) of Torts sec. 633 and
the recent trend in other jurisdictions. Rorvig, 123 Wash. 2d at 862-63 .
No such similar authority exists here for extending this exception to
actions brought for the quashing of warrants. In the absence of such
authority, we decline this invitation to recognize an additional exception
to the American rule for actions brought to quash search
warrants.
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Conclusion
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We hold Appellants are not entitled to attorney fees under 42 U.S.C.
sec.sec. 1983 and 1988 because they have failed to demonstrate the
deprivation of a federal constitutional right. Nor are attorney fees
available under any of our recognized equitable exceptions to the American
rule. The trial court's summary judgment in favor of the City is
affirmed.
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WE CONCUR:
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Barbara Durham
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James M. Dolliver
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Charles Z. Smith
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Richard P. Guy
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Gerry L. Alexander
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Philip A. Talmadge
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Opinion Footnotes |
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*fn1
The factual background for this action is set forth in detail in City of
Seattle v. McCready, 123 Wash. 2d 260, 868 P.2d 134 (1994) (McCready
I).
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*fn2
Appellants also seek review of the dismissal of their trespass claim.
However, Appellants have not preserved this issue for review because they
failed to assign error or provide argument relating to this claim in their
McCready II appeal. See Davis v. Davis, 16 Wash. 2d 607, 609, 134 P.2d 467
(1943) (issues decided in prior appeals, or not raised that could have
been decided in prior appeals, will not be considered on a subsequent
appeal in the same case), overruled on other grounds by, Greene v.
Rothschild, 68 Wash. 2d 1, 414 P.2d 1013 (1966).
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*fn3
As noted above, we have already disposed of Appellants' 1983 and 1988
claims relating to the probable cause warrants and the searches of
Appellants' buildings which were based on tenant consent. McCready II, 124
Wash. 2d at 312.
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Contrary to the City's interpretation of McCready I, we have not
previously rejected Appellants attorney fee claims relating to the
inspection warrants. Our McCready I opinion did not decide the issue of
whether Appellants could recover attorney fees under 1988 because, when
that appeal was taken, Appellants had not yet amended their answer to
assert their 1983 and 1988 counterclaims. McCready I, 123 Wash. 2d at 283
n.14.
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*fn4
Appellants argue the holding in Camara is mere dicta. While Discussion of
inspection warrants in Camara may be dicta, subsequent cases have
recognized the validity of inspection warrants which are not based on
traditional probable cause. See Michigan v. Tyler, 436 U.S. 499, 98 S. Ct.
1942, 56 L. Ed. 2d 486 (1978); Marshall v. Barlow's, Inc., 436 U.S. 307,
98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978); Pennsylvania Steel Foundry &
Mach. Co. v. Secretary of Labor, 831 F.2d 1211 (3rd Cir. 1987); Brock
v. Gretna Mach. & Ironworks, Inc., 769 F.2d 1110 (5th Cir.
1985).
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*fn5
This holding is also compelled by our opinion in McCready II, explicitly
rejecting Appellants' argument that warrants invalid under article I,
section 7 violate the Fourth Amendment. McCready II, 124 Wash. 2d at
311-12 .
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*fn6
Another exception to the American rule that might well be added to the
above lists is the Olympic Steamship rule allowing attorney fees incurred
by an insured in compelling an insurer to assume the burden of legal
action or obtain the full benefit of his or her contract. Olympic S.S. Co.
v. Centennial Ins. Co., 117 Wash. 2d 37, 53, 811 P.2d 673 (1991).
Although one of the rationales behind the Olympic S.S. rule is based on a
theory of implied contract, the rationales explicitly relied upon by the
Olympic S.S. court were the equitable notions regarding the disparity in
bargaining power between insureds and insurers, and attorney fees as
damages. Olympic S.S., 117 Wash. 2d at 52-53 .
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*fn7
For a Discussion of all the various permutations of the common fund
exception see Seattle School Dist. No. 1 v. State, 90 Wash. 2d at
540-45
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