The opinion of the court was delivered by: Edward F. Shea United States District Judge
ORDER GRANTING DEFENDANTS' JOINT MOTION FOR SUMMARY JUDGMENT
A hearing occurred in the above-captioned matter on April 20, 2011. Richard D. Wall appeared on Plaintiff Jeffrey D. Landfried's behalf; Hugh T. Lackie, Heather C. Yakely, and David L. Broom appeared on Defendants' behalf. Before the Court was Defendants' Joint Motion for Summary Judgment (ECF No. 43). Having reviewed the submitted materials and relevant authority and hearing from counsel, the Court was fully informed and granted the motion. This Order memorializes and supplements the Court's oral rulings.
In 2001, BounceBack, Inc. ("BounceBack") entered into an agreement
with Spokane County Prosecuting Attorney Steven Tucker establishing
Spokane County's Check Enforcement Program ("CEP").*fn2
The CEP's purpose is to collect debts on returned or
dishonored checks and provide those funds as restitution to victims.
Under the CEP, BounceBack sends letters, which are printed on the
Prosecuting Attorney's Office's letterhead, to check makers that have
been returned unpaid due to"insufficient funds," "non-sufficient funds," a "closed account," a
"stop payment," or "no account" (collectively "dishonored checks").
The CEP proceeds as follows: merchants enrolled in the CEP program
electronically send dishonored checks to BounceBack.*fn3
(24) hours of receiving the dishonored check and before entering the data into the CEP's files, BounceBack packages the check data and electronically sends that data to the Prosecuting Attorney for review. Within an additional twenty-four (24) hours, the Prosecuting Attorney may contact BounceBack to remove the check case for ineligibility and return it to the complainant. If the Prosecuting Attorney does not, the check cases are entered into the CEP's active files. Eligibility is discerned by a criteria predetermined by the Prosecuting Attorney. (ECF No. 51, at 9.) Only "questionable checks" are referred to the Prosecuting Attorney for further review. Id. at 6.
BounceBack sends the same two-letter series, pre-approved by the Prosecuting Attorney and printed on the Prosecuting Attorney's letterhead, to qualifying dishonored-check writers. First, a Notice of Bad Check is sent to the check writer, which reads:
The Spokane County Prosecuting Attorney's Office has received a complaint against you for issuing a worthless check(s). This complaint may result in a criminal charge of 'unlawful issuance of bank check' being filed against you under Washington Criminal Code. When a merchant in Spokane County files a bad check with our office, we can proceed directly to prosecution. However, we are offering you an opportunity to participate in a Diversion Program. (ECF No. 47, Ex. A.)
If the check writer elects to participate in the CEP, he makes restitution payments, and pays for and completes educational classes designed to minimize future violations. A check writer is also required to pay a $40.00 Processing Fee per check ($35.00 administrative fee paid to BounceBack and $5.00 fee paid to the Prosecuting Attorney), an $80.00 Program Fee per offender per year, and if necessary, a $25.00 Payment Plan Fee per offender. (ECF No. 56-1, Ex. A.)
If the check writer does not respond to the Notice of Bad Checks within ten (10) days, a Warning of Criminal Charges, similarly approved by the Prosecuting Attorney, is sent to the check writer:
You have not responded to our NOTICE regarding the worthless check(s) below. You can still avoid possible prosecution by IMMEDIATELY paying the check amounts and the fees.
In Washington, a person writing a worthless check due to Insufficient Funds or Closed or No Account with the bank may be guilty of a criminal offense. If the check(s) is not taken care of, a CRIMINAL COMPLAINT and a SUMMONS may be issued commanding you to appear in court and a CRIMINAL RECORD may result. (ECF No. 47, Ex. B.)
If the check writer participates in and completes the CEP, no criminal charges will be filed. If he does not, BounceBack sends the dishonored check back to the merchant, advising him that he may refer the matter to law enforcement. Id. at 4. Because the Prosecuting Attorney does not employ investigators, it generally files charges only after referral from law enforcement. Id. at 5.
BounceBack handles all aspects of CEP administration: it sends out notices, contacts check writers by phone, handles restitution accounts, issues restitution checks to victims, distributes reports to the prosecutor, and returns cases to the prosecutor for review for possible prosecution. BounceBack does not, however, exercise discretion as to which check writers are eligible to participate in the CEP. The Prosecuting Attorney retains sole discretion over charging decisions.
On or about March 22, 2008, Plaintiff wrote, and later had returned, a non-sufficient-funds check made out to Safeway. Safeway offered Plaintiff an opportunity to make the check good, with a mandatory penalty assessed in addition to the balance owed. Plaintiff did not pay. Safeway delivered the check to the Prosecuting Attorney for screening. The check and related information was forwarded to BounceBack for CEP administration.
Plaintiff filed this class-action lawsuit on December 4, 2009. Plaintiff's Complaint alleges that the Prosecuting Attorney, Mr. Tucker, and BounceBack's use of the CEP violates Washington's Collection Agency Act (WCAA), RCW 19.16 et seq., Washington's Consumer Protection Act (WCPA), RCW 19.86 et seq., the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1962, the Civil Rights Act, 42 U.S.C. § 1983, and state constitutional prohibitions against unlawful gifts of public funds. Defendants moved for summary-judgment dismissal of all claims asserted in Plaintiff's Complaint on December 13, 2010.
Underlying all Plaintiff's claims is the assertion that the Prosecuting Attorney cannot warn or threaten a check writer with criminal prosecution under RCW 9A.56.060(1) without first determining whether probable cause is present. Seeking summary dismissal of all Plaintiff's claims, Defendants argue a probable-cause finding is not a necessary prerequisite to the implementation of the CEP, but that RCW 9A.56.060 creates probable cause to support a criminal charge.
Summary judgment is appropriate if the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Once a party has moved for summary judgment, the opposing party must point to specific facts establishing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the nonmoving party fails to make such a showing for any of the elements essential to its case for which it bears the burden of proof, the trial court should grant the summary judgment motion. Id. at 322. "When the moving party has carried its burden of [showing that it is entitled to judgment as a matter of law], its opponent must do more than show that there is some metaphysical doubt as to material facts. In the language of [Rule 56], the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations omitted) (emphasis in original opinion).
When considering a motion for summary judgment, a court should not weigh the evidence or assess credibility; instead, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). This does not mean that a court will accept as true assertions made by the non-moving party that are flatly contradicted by the record. See Scott v. Harris, 550 U.S. 372, 380 (2007) ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.").
The FDCPA prohibits debt collectors from falsely, deceptively, or misleadingly representing a debt. 15 U.S.C. § 1692e. To be liable under the FDCPA, a defendant must qualify as a "debt collector," which § 1692a(6)(C) defines as: any person who uses any instrument or instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly ...