City of Seattle v. McCready

Page 266

131 Wn.2d 266

931 P.2d 156

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.

No. 63275-8.

Supreme Court of Washington, En Banc.

Argued Sept. 24, 1996.

Decided Feb. 13, 1997.

Groen & Stephens, John M. Groen, Bellevue, for appellants/defendants.

Mark Sidran, Seattle City Attorney and Miriam Reed, Asst. City Attorney, Seattle, for respondent.

JOHNSON, Justice.

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. § 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. § 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.

FACTS

The City of Seattle developed the RHIP to proactively identify code violations in Seattle apartment buildings. ¹ 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, 868 P.2d 134.

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.

Appellants defended against the declaratory judgment action and brought counterclaims for trespass, damages and attorney fees under 42 U.S.C. §§ 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, 868 P.2d 134.

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, 877 P.2d 686. The court also denied Appellants' claim for attorney fees under 42 U.S.C. §§ 1983 and 1988 because there was no Fourth Amendment violation. McCready II, 124 Wash.2d at 312, 877 P.2d 686. 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.

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. ² 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.

We agree with Appellants that our prior opinions did not address attorney fees under § 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 § 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.

ATTORNEY FEES UNDER 42 U.S.C. § 1988

Appellants seek an award of attorney fees under 42 U.S.C. § 1988 for defending the declaratory judgment action relating to the inspection warrants. ³ 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.

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, 868 P.2d 134. 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, 868 P.2d 134. 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.

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:

" 'probable cause' to issue a warrant to inspect ... exist[s] 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, 87 S.Ct. at 1736, 4 Wayne R. LaFave, Search & Seizure § 10.1(b) (3d ed.1996).

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, 868 P.2d 134. These factors mirror the reasonable Fourth Amendment "probable cause" standards for inspection warrants outlined in Camara. ⁴ Thus, the inspection warrants did not violate Appellants' Fourth Amendment rights. ⁵

Appellants contend they are also entitled to an award of fees under 42 U.S.C. § 1988 for having prevailed on a pendent, nonconstitutional theory. Under this theory, attorney fees may be awarded under § 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 § 1988's pendent claim theory.

ATTORNEY FEES ON EQUITABLE GROUNDS

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...