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City of Seattle v. McCready

February 13, 1997

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.



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.

Authored by Charles W. Johnson. Concurring: Barbara Durham, James M. Dolliver, Charles Z. Smith, Richard P. Guy, Gerry L. Alexander, Philip A. Talmadge.

The opinion of the court was delivered by: Johnson

En Banc

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.

FACTS

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.

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. 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.

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.

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.

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.

ATTORNEY FEES UNDER 42 U.S.C. sec. 1988

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.

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, ...


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