Cherry v. Municipality of Metropolitan Seattle

• Decision Date: 18 April 1991
• Docket Number: No. 57108-2,57108-2
• Citation: 808 P.2d 746,116 Wn.2d 794
• Parties: John CHERRY, Respondent, v. MUNICIPALITY OF METROPOLITAN SEATTLE, Petitioner. En Banc
• Court: Washington Supreme Court

Page 794

116 Wn.2d 794

808 P.2d 746

John CHERRY, Respondent, v. MUNICIPALITY OF METROPOLITAN SEATTLE, Petitioner.

No. 57108-2.

Supreme Court of Washington,

En Banc.

April 18, 1991.

Preston, Thorgrimson, Shidler, Gates & Ellis, J. Markham Marshall, Desmond L. Brown, Seattle, for petitioner.

Mitchell A. Riese, Seattle, for respondent.

Mark H. Sidran, Seattle City Atty., Jorgen G. Bader, Asst., Seattle, amicus curiae for petitioner.

Donald G. Grant, Vancouver, amicus curiae for petitioner on behalf of the Washington State Transit Ass'n.

GUY, Justice.

The Municipality of Metropolitan Seattle (Metro) seeks review of a Court of Appeals decision that Metro's policy prohibiting employees from possessing concealed weapons while on duty or on Metro property was in conflict with state law regulating the licensing and possession of firearms. The respondent, John Cherry, had challenged an arbitrator's determination that he was properly discharged by Metro for violation of Metro's no-weapons

                policy.   The Court of Appeals held that RCW 9.41.290 preempted and invalidated Metro's regulation of firearms possession by municipal employees.   We reverse
                

FACTS

John Cherry was employed for 14 years as a Metro bus driver. On August 20, 1987, as he boarded a Metro vehicle on Metro property to begin his shift, Cherry was confronted by his supervisor regarding reports that he carried weapons and drugs while on duty. Cherry invoked his right to union representation. Subsequently, Cherry and his supervisor were joined by a union steward and another Metro supervisor. Cherry was ordered to empty his pockets and carrying bag. He was also asked to retrieve his jacket, which he had placed in his car while awaiting the union representative. In the carrying bag were found an electric cattle prod that measured approximately 12 to 18 inches in length, and a 6-inch brass rod pointed at both ends that Cherry had purchased at a martial arts shop. Cherry also had a loaded .38 caliber pistol concealed in his Metro jacket, for which he had a valid concealed firearm permit. Cherry stated that he carried these weapons for protection in case he was attacked. He added that there were many jobs, but only one life. The bag further contained prescription medications, including several drugs which could cause drowsiness, and codeine pills. Under Metro's substance abuse policy, use of prescription and nonprescription medication that can impair performance must be reported to a supervisor. Cherry had not complied with this requirement.

Metro concluded that Cherry had violated two Metro policies: first, the carrying of concealed weapons was a flagrant violation of the no-weapons policy; and second, Cherry's possession of codeine without medical authorization and his failure to report his use of prescription drugs that could impair his job performance was a violation of the substance abuse policy. On August 27, 1987, Metro advised Cherry that each of the two policy violations was considered "gross misconduct", and by the terms of the collective Cherry had the option of seeking review of his discharge either through the grievance procedures in the collective bargaining agreement between Metro and his union or through arbitration authorized by Metro resolution. He chose review of his discharge through arbitration. On February 23, 1988, based upon a 2-day hearing and review of briefs, the arbitrator rendered an opinion upholding Cherry's termination. The opinion maintained that Cherry "was properly discharged for possession of weapons while on duty and violation of Metro's Alcohol and Substance Abuse Policy." The opinion further stated that Cherry's violation of the no-weapons policy rendered unnecessary a decision as to whether Cherry's substance abuse policy violation by itself rose to the level of gross misconduct warranting Cherry's dismissal.

                bargaining agreement with his union, "gross misconduct" was punishable by discharge.   Metro decided there were no mitigating factors warranting a lesser penalty.   Cherry was initially suspended without pay for 30 days, followed by termination of his employment on September 25, 1987
                

Cherry appealed the arbitrator's decision by filing an action in King County Superior Court. He claimed a violation of his constitutional right to bear arms and that RCW 9.41.290, the preemption amendment to the Uniform Firearms Act, invalidated and preempted Metro's firearms rules. The arbitrator, Cherry contended, had no power to decide these claims. Cherry argued the arbitration decision to uphold his termination was based solely upon his possession of a handgun, and was inconclusive as to the effect of his possession of the other weapons and violation of the substance abuse policy. Metro moved to dismiss pursuant to CR 12(b)(6). This motion was denied.

Metro filed a motion for summary judgment, pursuant to CR 56, to dismiss Cherry's claims. Cherry filed a cross motion for summary judgment. On July 26, 1988, the trial court confirmed the factual findings of the arbitrator, as neither party had challenged them, and reached the merits of Cherry's constitutional and statutory claims. The trial Cherry appealed. The Court of Appeals reversed the dismissal in Cherry v. Municipality of Metro. Seattle, 57 Wash.App. 164, 787 P.2d 73 (1990), remanding with instructions to proceed with review of Cherry's termination without reference to his firearms possession. Metro has appealed that decision.

                court ruled that Metro's no-weapons policy did not violate Cherry's constitutional right to bear arms and that Metro's no-weapons policy was not preempted by RCW 9.41.290.   The trial court granted Metro's motion for summary judgment and dismissed Cherry's claims.   The court denied Metro's motion for attorney fees and costs
                

ANALYSIS

The Court of Appeals characterized this case as one of "statutory, not constitutional interpretation" and thus did not address Cherry's constitutional arguments. Cherry, 57 Wash.App. at 166, 168, 787 P.2d 73. We agree. The sole remaining issue is whether a municipal employer's authority to regulate or prohibit employee possession of firearms while on the job is preempted by RCW 9.41.290 (the preemption section of Washington's Uniform Firearms Act).

We hold that RCW 9.41.290 is intended to preempt regulatory city, town or county firearms laws and ordinances, but does not address internal employment rules limiting on-duty possession of firearms by public employees in the workplace.

There is no question that in amending RCW 9.41.290 the Legislature expressly intended to preempt municipal "laws and ordinances" enacted on the subject of firearms regulation. ¹ Our inquiry concerns the intended reach or scope of that preemption and whether it extends to cover public employment work rules.

RCW 9.41.290 provides in pertinent part:

The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including ... possession ... Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law and are consistent with this chapter.... Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.

Both parties agree that this court should begin with the text of the statute in determining the legislative intent behind RCW 9.41.290. Metro, however, urges this court also to consider the legislative history behind the statute and its place in the overall scheme of RCW 9.41.

A court interprets a statute so as to give effect to the Legislature's intent in creating the statute. Longview Fibre Co. v. Cowlitz Cy., 114 Wash.2d 691, 790 P.2d 149 (1990). If the statute is unambiguous, its meaning is to be derived from the language of the statute alone. In re Eaton, 110 Wash.2d 892, 898, 757 P.2d 961 (1988). If, however, the intent of the statute is not clear from the language of the statute by itself, the court may resort to statutory construction. Such construction may include the consideration of legislative history. Department of Transp. v. State Employees' Ins. Bd., 97 Wash.2d 454, 458, 645 P.2d 1076 (1982); see also Bellevue Fire Fighters Local 1604 v. Bellevue, 100 Wash.2d 748, 751, 675 P.2d 592 (1984), cert. denied, 471 U.S. 1015, 105 S.Ct. 2017, 85 L.Ed.2d 299 (1985). Beginning with the language of the statute, RCW 9.41.290 states that "firearms regulation" within the boundaries of the state is preempted by the section, and that municipalities may enact only "those laws and ordinances" relating to firearms specifically authorized by state law and consistent with the preemption section.

Cherry urges this court to focus on that part of the statute which provides: "The state of Washington hereby fully It is not clear from the language of the statute alone whether the Legislature intended RCW 9.41.290 to preempt and invalidate the authority of municipal employers to regulate or otherwise prohibit a municipal employee's possession of firearms while on the job. We therefore look beyond the language and resort to extrinsic aids, such as legislative history, in determining the scope of the Legislature's intended preemption in enacting RCW 9.41.290. Paulson v. County of Pierce, 99 Wash.2d 645, 650, 664 P.2d 1202 (1983). We also seek help in interpreting this statutory section by determining legislative intent in the context of the whole statute and its general purpose. Anderson v. Morris, 87 Wash.2d 706, 716, 558 P.2d 155 (1976).

                occupies and preempts the entire field of firearms

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