Downey v. Pierce Cnty.

165 Wash.App. 152

267 P.3d 445

Heidi I. DOWNEY, individually and ex rel. all similarly situated Taxpayers of Washington State and Pierce County, Appellants,

v.PIERCE COUNTY; Pierce County Auditor's Office; Pierce County Office of the Hearing Examiner; and Pierce County Animal Services Division, Respondents.

No. 41055–9–II.

Court of Appeals of Washington, Division 2.

Nov. 29, 2011.

Adam Phillip Karp, Animal Law Offices, Bellingham, WA, for Appellants.

Cort O'connor, Pierce County Prosecutor's Office, Tacoma, WA, for Respondents.

PUBLISHED IN PART OPINION

JOHANSON, J.

[165 Wash.App. 155] ¶ 1 Heidi I. Downey appeals a summary judgment order (1) affirming a hearing examiner's decision finding that her dog is a dangerous animal under Pierce County Code (PCC) 6.07.015,¹ and (2) dismissing her Uniform Declaratory Judgment Act (UDJA) ²/taxpayers' derivative action ³ challenging Pierce County's dangerous animal declaration (DAD) proceedings. In regard to her UDJA/taxpayers' derivative claims, she argues that Pierce County's DAD process is facially unconstitutional because (1) it requires the person challenging a DAD to pay a fee to obtain an evidentiary hearing and further review, (2) it does not provide an adequate standard of proof, and (3) it does not allow for subpoena power at the evidentiary hearing.⁴ We agree that charging a fee to obtain adversarial/evidentiary review of a DAD violates due process and that Pierce County's DAD ordinance does not establish an adequate standard of proof. But we hold that Downey has failed to show that the trial court erred in dismissing her other UDJA/taxpayers' derivative claim challenging the lack of subpoena power at the auditor's hearing level of review.

¶ 2 As to Downey's arguments related to this specific DAD, which we address in the unpublished portion of this opinion, we hold that, under the appropriate standard of proof, the evidence was insufficient to support the finding that Downey's dog attacked her neighbor's dog without provocation, and we reverse the DAD with prejudice.

FACTS

Dangerous Dog Declaration and Auditor's Designee Review

¶ 3 On April 7, 2009, Downey's Great Pyrenees-cross dog Blizzard allegedly “grabbed” Tina Steiner's seven pound, Pomeranian Kayla; injuring her so severely that she had to be euthanized. Clerk's Papers (CP) at 80. More than four months later, after initially being unable to identify Blizzard based on Steiner's description of the dog that had attacked Kayla, Pierce County Animal Control Officer Jody Page declared Blizzard a “dangerous animal” and issued a DAD. AR (Apr. 15, 2010) at 29 (capitalization omitted). The DAD form advised Downey that she could appeal the DAD to the auditor or auditor's designee (auditor) by filing a written request and paying a $250 “review fee.” ⁵ Administrative Record (AR) (Apr. 15, 2010) at 29.

¶ 4 Paying the $250 review fee required under PCC 6.07.015(E)(1), Downey sought review of the DAD before the auditor. The auditor held an informal, unrecorded hearing on the matter. In an amended administrative review decision,⁶ the auditor upheld the DAD, finding that Blizzard had “[i]nflicted severe injury on or kill[ed] an animal without provocation while the animal inflicting the injury [was] off the property where its owner resides.” AR (Apr. 15, 2010) at 70.

Hearing Examiner Appeal

¶ 5 Paying a required $500 appellate review fee, Downey then “appealed” the auditor's decision to a hearing examiner. The hearing examiner reviewed the DAD de novo, considered the materials that the auditor had before him, and heard additional live testimony. But because there was no recording or transcription of the auditor's hearing, the hearing examiner could not consider any testimony offered at the auditor's hearing.

¶ 6 Steiner was the only person who testified about the attack on Kayla. She testified that on the morning of the incident, she had turned Kayla loose to allow her to urinate after first looking around and not “see[ing] anything” in the immediate area. CP at 80. Steiner then turned her back to Kayla to put one of her other dogs back into the dog pen. CP at 80. While her back was turned, Steiner heard “something,” she was not sure if it was Kayla “barking or a yip, but something.” CP at 80–81. When she turned around, she saw that Downey's “dog had grabbed [Kayla] by the stomach and was running with [her].” CP at 80. Steiner ran after the dogs yelling, “Kayla,” and the other dog dropped Kayla. CP at 80.

¶ 7 Steiner was unsure where the other dog had come from, but she believed that the attack happened next to her carport. Steiner also indicated on a drawing of the surrounding properties that the attack took place well away from Downey's property, either on or close to an access easement crossing another neighbor's property. Although Steiner gave varying descriptions over time of the dog that had grabbed Kayla, at the hearing she identified Blizzard as the attacking dog.

¶ 8 Downey testified that her dogs were kenneled at the time of the attack. She also testified that Officer Page could not identify Blizzard from Steiner's initial descriptions and that it was not until several months after the incident that Officer Page felt she had a sufficient identification to issue the DAD. Downey argued that Steiner did not see the incident and that Steiner's identification of Blizzard was incorrect, as evidenced by her descriptions of the attacking dog changing over time.

¶ 9 Officer Page also testified. She confirmed that (1) she could not identify the attacking animal based on Steiner's initial descriptions; and (2) Steiner had reported that she did not see or hear the incident start.

¶ 10 The hearing examiner upheld the DAD, finding that Blizzard had attacked Kayla without provocation while off of Downey's property. Downey moved for reconsideration, challenging several of the hearing examiner's findings, including that the incident occurred off of Downey's property and that the attack was unprovoked, and raising several other issues related to the auditor's review. The hearing examiner issued written findings of fact and conclusions of law on the motion for reconsideration, noting that he had reviewed the DAD “de novo” and that he had applied the “preponderance of evidence” standard at the hearing. AR (Apr. 15, 2010) at 2. He then denied the motion for reconsideration, reiterating his original findings of fact.

Superior Court Appeal and UDJA/Taxpayers' Derivative Action

¶ 11 On April 1, 2010, Downey filed an amended complaint in Pierce County Superior Court appealing the DAD and bringing a UDJA/taxpayers' derivative action requesting injunctive and/or declaratory relief. In the first part of her complaint, Downey challenged the DAD on a variety of grounds, including that the evidence was insufficient to support the DAD, and she petitioned for return of her “ ‘appeal’ costs and attorney's fees” related to the DAD proceedings. CP at 18. In the second part of her complaint (the UDJA/taxpayers' derivative action), she argued, inter alia, that (1) PCC 6.07.015(E)(1)'s requirement that the person challenging a DAD pay a fee for an initial evidentiary hearing violated due process, (2) PCC 6.07.015(E)(3)'s appellate fee requirement violated due process, and (3) PCC 6.07.015(E)(2) and (3) violated due process by failing to establish an adequate standard of proof and by not giving the auditor subpoena powers.

¶ 12 Downey moved for summary judgment on her UDJA/taxpayers' derivative claims. The superior court (1) denied Downey's summary judgment motion, (2) affirmed the hearing examiner's decision upholding the DAD, (3) found that Downey had “standing to seek the declaratory and injunctive relief requested under taxpayer derivative suit doctrine and the UDJA,” and (4) concluded that Downey had not demonstrated that the challenged provisions were unconstitutional. CP at 216. The superior court dismissed all claims with prejudice. CP at 217. Downey appeals.

ANALYSIS

UDJA/Taxpayers' Derivative Claims

¶ 13 Downey challenges the superior court's summary judgment dismissal of her UDJA/taxpayers' derivative claims. She argues that the County's dangerous animal ordinances violate due process because (1) PCC 6.07.015(E)(1) requires the animal's owner to pay a fee for the first level of evidentiary review, which occurs during the auditor's review; (2) PCC 6.07.015(E)(3) requires the animal's owner to pay a fee for “appellate” review before the hearing examiner, which, in fact, appears to be a new evidentiary hearing rather than actual appellate review; (3) PCC 6.07.015 fails to establish an adequate standard of proof; and (4) PCC 6.07.015 does not provide for subpoena power at the first level of evidentiary review (the auditor's review). We hold that (1) because the ordinance requires payment before receiving an evidentiary hearing and (2) the ordinance fails to establish an adequate standard of proof the ordinance violates due process.

¶ 14 We review summary judgment orders by engaging in the same inquiry as the trial court. Morin v. Harrell, 161 Wash.2d 226, 230, 164 P.3d 495 (2007). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. CR 56(c). We consider all facts and reasonable inferences from them in the light most favorable to the nonmoving party. Biggers v. City of Bainbridge Island, 162 Wash.2d 683, 693, 169 P.3d 14 (2007). Where, as here, only legal questions are before us, we review those questions of law de novo. Wash. State Farm Bureau Fed'n v. Gregoire, 162 Wash.2d 284, 300, 174 P.3d 1142 (2007) (citing Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9–10, 43 P.3d 4 (2002)). Our review is limited to the facts and issues called to the trial court's attention, but we are “entitled to consider relevant law in deciding an issue, regardless of whether any party has cited it.” Rahman v. State, 170 Wash.2d 810,...