268 F.3d 791 (9th Cir. 2001), 00-35041, Columbia Basin Apt. Assoc. v. City of Pasco

Docket Nº:00-35041
Citation:268 F.3d 791
Case Date:September 26, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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268 F.3d 791 (9th Cir. 2001)




No. 00-35041

United States Court of Appeals, Ninth Circuit

September 26, 2001

Argued and Submitted July 12, 2001

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John J. McDermott, Jackson & Campbell, P.C., Washington, D.C., for the plaintiffs-appellants.

Leland B. Kerr (argued) and David D. Hilton, Evans, Kerr, Haney & Hilton, P.S., Kennewick, WA, for the defendant-appellee.

Appeal from the United States District Court for the Eastern District of Washington; Robert H. Whaley, District Judge, Presiding. D.C. No. CV-99-05013-RHW.

Before: Alarcon, Fernandez, and Tashima, Circuit Judges.

Opinion by Judge Alarcon; Dissent by Judge Tashima

Alarcon, Circuit Judge:

Appellants appeal from the order granting summary judgment on the merits in favor of the City of Pasco. For the reasons stated below, we apply the Younger abstention doctrine to dismiss Bernard and Jean Shaw from this action, and apply the Pullman doctrine to vacate and remand the claims of the remaining Appellants with instructions to stay further proceedings until the Washington state courts have had the opportunity to consider the merits of the issues raised in the complaint under that state's law.


Appellants Bernard and Jean Shaw ("Shaws") and Robert and Joan Lawrence ("Lawrences") are landlords in the City of Pasco ("City"). The Shaws rent an apartment to Robert Lee Gaines and Billie Jean Gaines ("Gaineses"). The Lawrences rent an apartment to Manuel Vala ("Vala") and

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Maria Galeana ("Galeana"). The Columbia Basin Apartment Association ("CBAA") is a nonprofit organization consisting of individuals and corporations that own and manage rental housing in the City.1

On July 7, 1997, the City enacted Ordinance 3231 ("Pasco Ordinance") to ameliorate sub-standard and dangerous rental dwelling units in the City. The Pasco Ordinance specifies in pertinent part that:

Any person renting or making available for rent to the public any dwelling unit shall secure a license registering each dwelling unit including a certification warranting that each such dwelling unit complies with the Uniform Housing Code as adopted by the City and does not present conditions that endanger or impair the health or safety of the tenants . . . . Issuance of the business license shall be contingent upon submission of the certification, inspection, as required by this title, payment of the fee provided above and compliance with Chapter 5.78 of this title.

PMC 4.04.160(a). Chapter 5.78 of the Pasco Ordinance, in turn, prohibits renting "to the public any residential dwelling unit . . . without securing and maintaining a current business license as required by this title." PMC 5.78.010. In addition, the Pasco Ordinance states in pertinent part that"[a]s a condition for the issuance of a license provided by this chapter, the applicant shall provide a certificate of inspection that all of the applicant's rental dwelling units comply with the standards of the Uniform Housing Code and do not present conditions that endanger or impair the health or safety of a tenant." PMC 5.78.020(a). The Pasco Ordinance further provides that "[t]he applicant shall submit a certificate of inspection based upon the physical inspection of the dwelling units conducted not more than 90 days prior to the date of the certificate of inspection and compliance certified by" one of the following: (1) a City of Pasco Code Enforcement Officer; (2) the U.S. Department of Housing and Urban Development; (3) certified private inspectors approved by the City; (4) a Washington licensed structural engineer; or (5) a Washington licensed architect. PMC 5.78.020(c).

Finally, PMC 5.78.030 establishes civil penalties for violations of the Pasco Ordinance. Specifically, it states that "[a]ny person violating any of the provisions or failing to comply with any of the requirements of this chapter, shall upon a finding that the act or omission had been committed, be punishable by a fine of not more than $500 dollars and shall be guiltily [sic] of a code infraction. Each such person is guilty of a separate code infraction for each and every day during any portion of which any violation of any provision . . . is committed . . . ." PMC 5.78.030(a). "In addition to the penalties provided above, any violation of this chapter may result in the revocation of the business licenses provided by this title. Any violation of this chapter . . . may . . . result in the issuance of a notice of civil violation . . . subject to the penalties as imposed under the provisions of this code. " PMC 5.78.030(c).2

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The Gaineses have refused to consent to an inspection of their apartment. Consequently, their landlords, the Shaws, have refused to allow the City inspector to have access to the Gaineses' apartment. Vala and Galeana have also refused to consent to an inspection of their apartment. As a result, the Lawrences have refused to allow an enforcement officer to inspect Vala and Galeana's apartment. The Lawrences and the Shaws have notified the City that they are unable to comply with the Pasco Ordinance because their tenants object to the inspections.

In response, the City has repeatedly informed the Shaws that failure to comply with the Pasco Ordinance may result in (1) civil penalties; (2) imprisonment;3 (3) revocation of their business license; (4) closure of the building; and (5) eviction of the tenants. On January 26, 1999, the City filed a civil action against the Shaws in Franklin County Superior Court, requesting, inter alia, an injunction to: (1) restrain the Shaws from conducting the business of residential rentals in the City without a valid business license; and (2) enforce their compliance with the Pasco Ordinance. The City has threatened the Lawrences with taking action to enforce its civil remedies against them for failing to comply with the Pasco Ordinance, but has not yet taken any enforcement measures.

On January 26, 1999, Appellants filed the present action in federal district court seeking declaratory and injunctive relief under 42 U.S.C. &#167 1983. The complaint alleges that:

[T]he City's application of the Ordinance is constitutionally invalid because it: (i) violates the constitutional protection from unreasonable searches and seizures set forth in the Fourth Amendment to the Constitution of the United States; (ii) is constitutionally vague, thereby depriving Plaintiffs of due process guaranteed by the Fourteenth Amendment to the U.S. Constitution; and (iii) mandates the payment of `fees' which constitute an illegal tax.

The record reflects that at some point during the pendency of the federal suit, the City and the Shaws jointly agreed to stay the state proceeding pending resolution of the Appellants' action in federal court.

On October 6, 1999, the City moved for summary judgment in this matter. The district court granted the motion. It ruled that the Pasco Ordinance does not implicate the Fourth Amendment because it permits landlords to conduct private inspections. The district court also determined that the Pasco Ordinance does not require landlords to act as state actors in inspecting the tenants' residences. We have jurisdiction over this timely appeal under 28 U.S.C. &#167 1291.


Because the group of Appellants is comprised of landlords, tenants, and an organization, three groups with distinct interests, we first consider their standing to maintain this action. "Although raised by neither of the parties, we are first obliged to examine the standing of appellees, as a matter of the case-or-controversy requirement associated with Art. III, to seek injunctive relief in the District Court. " Juidice v. Vail, 430 U.S. 327, 331 (1977). "Standing is a question of law reviewed de novo."

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Monterey Mech. Co. v. Wilson, 125 F.3d 702, 706 (9th Cir. 1997) (quoting Snake River Farmers' Ass'n v. Dep't of Labor, 9 F.3d 792, 795 (9th Cir. 1993) and reviewing standing sua sponte).

Three elements are required to establish Article III standing:

First, the plaintiff must have suffered an injury in fact-an invasion of a legally-protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of-the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Desert Citizens Against Pollution v. Bisson, 231 F.3d 1172, 1176 (9th Cir. 2000) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

We conclude that all of the Appellants have standing in this case. The tenants assert that enforcement of the Pasco Ordinance in the face of their exercise of their Fourth Amendment right to be free from unreasonable searches is likely to result in their eviction. The tenants maintain that unless they consent to an allegedly unreasonable search, the City will deprive their landlords of business licenses and the buildings will be condemned. Eviction is a concrete injury. See Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442, 446-47 (9th Cir. 1994) (holding threat of eviction is concrete, real threat to interests of residents sufficient to comprise injury in fact). This...

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