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Rabon v. City of Seattle

October 28, 1996


Appeal from Superior Court of King County. Docket No: 95-2-20199-7. Date filed: 09/01/95. Judge signing: Hon. Michael C. Hayden. Previously

Authored by Visiting Judge. *fn1 Concurring: Ronald E. Cox, C. Kenneth Grosse

The opinion of the court was delivered by: Moynihan

MOYNIHAN, J.P.T. *fn1 -- Wilton Rabon appeals the superior court's denial of a preliminary injunction. That injunction would have prevented the imminent destruction of his two Lhasa apso dogs, which were found to be vicious by a Seattle Municipal Court jury. He contends that his likelihood of prevailing on the merits of his underlying constitutional claims requires the superior court to grant the injunction. Because we conclude that Rabon could not prevail on the merits, we affirm the denial.

Rabon is the owner of several dogs. But his problems, and eventually this appeal, arose because he was unable to control two of those dogs. In November 1991, Seattle Animal Control received a complaint that Rabon's dogs had attacked a passerby. In February 1992, and twice in June 1992, complaints were made to Seattle Animal Control about the dogs. The two dogs were seized and eventually returned to Rabon on certain conditions, including having the dogs on a leash when they were not in the residence.

On May 2, 1993, the same two dogs--unleashed--attacked and bit Mariliz Romano and Ann Whytemore. On May 4, 1993, these dogs--again unleashed--attacked and bit Judith Lewis. Seattle Animal Control seized and impounded the dogs. Rabon was charged with four counts of owning a vicious dog, and on October 1, 1993, a jury convicted him of all four counts. He appealed, but the decision was affirmed by the superior court and a discretionary review was denied by the Court of Appeals.

Upon completion of the appeals, the City notified Rabon of its intent to destroy the two dogs. Rabon filed a complaint against the City alleging that the destruction of his dogs would violate state and federal constitutional rotections. Rabon also filed a motion for a preliminary injunction. The motion was denied. Rabon appeals from the denial of that motion. This court granted a stay pending appeal.

The parties agree that the standard of review for a preliminary injunction is abuse of discretion, i.e., whether the trial court's decision is based on untenable grounds, is manifestly unreasonable, or is arbitrary. Washington Fed'n of State Employees, Council 28, AFL-CIO v. State, 99 Wash. 2d 878, 887, 665 P.2d 1337 (1983). The parties further agree that to get an injunction Rabon must show that he meets the following three criteria:

(1) that he has a clear legal or equitable right, (2) that he has a well-grounded fear of immediate invasion of that right, and (3) that the acts complained of are either resulting in or will result in actual and substantial injury to him.

Tyler Pipe Industries, Inc. v. Department of Revenue, 96 Wash. 2d 785, 792, 638 P.2d 1213 (1982) (quoting Port of Seattle v. International Longshoremen's & Warehousemen's Union, 52 Wash. 2d 317, 319, 324 P.2d 1099 (1958)). The second and third criteria are not in dispute and favor granting the preliminary injunction. At issue in this case is the first criterion: whether Rabon has a clear legal or equitable right in his underlying case against the City.

Before we reach the merits of that issue, we discuss Rabon's contention that the trial court inappropriately adjudicated the merits of the underlying case when ruling on the preliminary injunction. To determine whether Rabon would have a clear legal or equitable right entitling him to a preliminary injunction, the trial court necessarily considered the applicable law and how it would apply to the facts of the case. Ordinarily, when hearing a motion for a preliminary injunction, the trial court "does not adjudicate the ultimate rights in the lawsuit"; rather the trial court only examines the likelihood that the moving party will prevail on the merits. Tyler Pipe, 96 Wash. 2d at 793. But where the essential facts are not in dispute and the only issue on the merits is an issue of law, the trial court necessarily decides the merits of the case when it decides whether there is a likelihood that the plaintiff will prevail on the merits. *fn2 Cases citing the rule that the trial court should not adjudicate the ultimate rights in the lawsuit have contained issues of facts. See, e.g., Tyler, 96 Wash. 2d at 793 (issue of fact was whether Tyler Pipe's nexus with the State was so attenuated that the State could not require Tyler Pipe to pay the disputed tax). We therefore conclude that the trial court did not err by essentially adjudicating the ultimate merits of the suit.

Like the trial court in this case, we too must reach the ultimate issues of law raised by Rabon in his underlying suit. Those issues are:

(1) whether general laws providing for the registration of dangerous dogs preempts municipal legislation regulating vicious dogs; (2) whether the Seattle ordinance providing for the destruction of vicious dogs conflicts with those same general laws; and (3) whether Rabon's procedural due process rights were violated.

Rabon contends that the trial court erred by concluding that he had not shown a likelihood of success on the merits of his preemption/conflict claim. He claims that RCW 16.08.080 either preempts or is in irreconcilable conflict with Seattle Municipal Code (SMC) 9.25.030. The law of preemption, and its close cousin, irreconcilable conflict, are governed by Washington Constitution, article XI, section 11, which provides that:

Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws. Courts analyze preemption and conflict claims independently. See Brown v. City of Yakima, 116 Wash. 2d 556, ...

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