City of Seattle v. McCready

• Decision Date: 24 February 1994
• Docket Number: No. 59359-1,59359-1
• Citation: 868 P.2d 134,123 Wn.2d 260
• Parties: The CITY OF SEATTLE, a municipal corporation, Respondent, v. James P. and Ann McCREADY, a marital community, Marv Kaercher, and Greg Marshall, Appellants, and George Lott, John D. Hansen, Siobhan Stewart, Kels Koch, Jerry Allen and all similarly situated persons, 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 Does 1-10, Respondents.
• Court: Washington Supreme Court

Page 260

123 Wn.2d 260

868 P.2d 134

The CITY OF SEATTLE, a municipal corporation, Respondent, v. James P. and Ann McCREADY, a marital community, Marv

Kaercher, and Greg Marshall, Appellants,

and

George Lott, John D. Hansen, Siobhan Stewart, Kels Koch,

Jerry Allen and all similarly situated persons, 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 Does 1-10, Respondents.

No. 59359-1.

Supreme Court of Washington,

En Banc.

Feb. 24, 1994.

Reconsideration Denied April 29, 1994.

Richard B. Sanders, Eric R. Stahlfeld, Bellevue, for appellants.

Mark H. Sidran, Seattle City Atty., Miriam M. Reed, Asst., Phillip E. Brenneman, Asst., Seattle, for respondent.

Thomas B. Nast, Seattle, amicus curiae for appellant on behalf of Washington Apartment Ass'n.

Kenneth R. Davis, II, Seattle, amicus curiae for appellants on behalf of American Civil Liberties Union of Washington.

Scott Mannakee, Seattle, amicus curiae for respondent on behalf of Tenants Union.

Frederick Gentry, Olympia, amicus curiae for respondent on behalf of Washington State Fire Chiefs Ass'n.

UTTER, Judge.

In this case, we once again consider the constitutionality of portions of the City of Seattle's Residential Housing Inspection Program (RHIP). In Margola Associates v. Seattle, 121 Wash.2d 625, 854 P.2d 23 (1993), we were confronted with a number of constitutional challenges to the funding provisions of the RHIP. We rejected most of these challenges, including those based on taking without just compensation, substantive due process, equal protection, and the impairment of contracts. Margola, 121 Wash.2d at 642-54, 854 P.2d 23. We remanded the case for further proceedings, however, because a material question of fact persisted as to whether the funding provisions were an impermissible tax or a permissible fee. Margola, 121 Wash.2d at 640-41, 854 P.2d 23.

Here, we are faced with a constitutional challenge to the manner in which Seattle has implemented the RHIP. A number of Seattle landowners assert that "inspection warrants" issued by a superior court in implementation of the RHIP violate the fourth amendment to the United States Constitution and article 1, section 7 of the Washington State Constitution. They argue the warrants are unconstitutional because they were issued without probable cause to believe the buildings to be searched were in violation of the pertinent building and housing codes.

We hold that under Const. art. 1, § 7, the warrants must be quashed.

I

As we noted in Margola, Seattle previously enforced its building and housing codes, including the Building Code, the Electrical Code, the Housing Code, etc. (collectively, "the housing codes"), solely on a complaint and probable cause basis. 121 Wash.2d at 631-32, 854 P.2d 23. That is, the city's Department of Construction and Land Use (DCLU) would investigate potential violations of the housing codes only when there was either a complaint of a violation or if DCLU had other evidence constituting probable cause to believe a violation had occurred.

In 1986, DCLU concluded the complaint-based system was inadequate and that some form of "pro-active" enforcement program was needed. The agency therefore proposed to the Seattle City Council that research be done in the direction of formulating such a program. In 1987, the Seattle City Council accepted DLCU's recommendation, determining that "housing code enforcement on a complaint basis frequently delays City intervention until structures have become seriously deteriorated." Seattle City Ordinance 113531 (July 30, 1987). The City Council therefore directed DCLU to develop and implement a "demonstration program" involving pro-active enforcement, in which inspections would be based on objective factors such as building size, age, and geographic location rather than on probable cause. Ordinance 113531, § 1.

The demonstration program operated from 1987 through the end of 1988. Three hundred and fifty apartment buildings were chosen at random from the city's housing stock and inspected for housing violations. DCLU then compiled the data from the inspections. DCLU reported to the City Council that while 78 percent of the 350 buildings inspected had some sort of housing code violation, only a "small percentage" had "serious" code violations. Clerk's Papers, at 197. However, DCLU also reported that over 80 percent of the buildings with violations had not been the subject of complaints under the previous system. Clerk's Papers, at 197. In light of the findings of the demonstration program, DCLU recommended to the City Council some sort of permanent proactive enforcement program be adopted.

The City Council therefore directed the agency by resolution to "design and propose a proactive enforcement program". Seattle City Resolution 28046 (September 18, 1989). The council indicated that any proposed program should employ computer modeling of objective factors in order to identify the worst "30 percent" of the city's multi-family apartment buildings for inspection. Resolution 28046. Pursuant to Resolution 28046, DCLU developed the RHIP.

Unfortunately, the precise characteristics of the RHIP are not contained within a single legislative or administrative document; instead, the details of the RHIP must be gleaned from the various affidavits and declarations which are present in the record. In brief, the RHIP is a "predictive model" inspection program, whereby DCLU chooses to inspect buildings on the basis of certain objective factors associated with those buildings rather than on specific information of a violation of the housing codes. The "predictive model" which is the source of the RHIP's inspection decisions was developed by a private economics consultant. The consultant employed multiple regression analysis, a common statistical tool, to identify correlations between objective factors, like a building's age, and likelihood of serious code violations. Based on the data from the demonstration program, he ultimately identified three objective factors which had a statistically significant relationship to the likelihood of violations: building age, assessed value per unit, and number of code violations in the past five years. Using these three factors as predictors, the consultant selected the 30 percent of Seattle's multi-family apartment buildings with the highest likelihood of serious code violations.

DCLU implemented an inspection program with respect to the buildings on the 30 percent list through a system of owner notification, tenant consent, and, finally, search warrants. According to the official who manages the RHIP, apartment building owners are notified as a "matter of courtesy". Clerk's Papers, at 342. A letter is sent to each of the affected tenants explaining the RHIP and requesting the tenant's consent to inspect. If the tenant refuses entry to the city's inspectors, a search warrant is sought ex parte. It is unclear from the record whether notice of the warrant proceeding is provided to the nonconsenting tenant. One tenant has indicated he received no notice, Clerk's Papers, at 1388, while another was informed a warrant would be sought, though not on what date or in what forum, Clerk's Papers, at 1173.

Resolution 28046 had directed DCLU to "design and propose" a proactive inspection program. While this language might imply the city council intended to review the RHIP before its implementation and pass an authorizing ordinance, no ordinance has been issued enacting the RHIP. However, the council has taken a number of actions indicating its support for DCLU and the program. As part of its budget ordinance for 1990, the council approved funds for the implementation of the RHIP. See Ordinance 114800 (Dec. 1, 1989) and Clerk's Papers, at 250. The council also enacted an ordinance providing civil penalties for persons who interfered with RHIP inspections. Ordinance 116315 (August 21, 1992). And finally, on July 13, 1992, the council issued a resolution, in which the mayor "concurred", recognizing that warrants might be necessary in order to carry out the RHIP. Resolution 28562 (July 13, 1992).

On April 2, 1991, prior to seeking any warrants, Seattle filed a class action in superior court, seeking a declaratory judgment that the RHIP was valid under both the Fourth Amendment and Const. art. 1, § 7. The complaint named a number of the appellants, including James and Ann McCready, George Lott, and Marv Kaercher, as representatives of the class of "owners of multi-family rental housing". Clerk's Papers, at 1564. It also named a number of individuals, including Siobhan Stewart, Greg Marshall, and Kels Koch, as representatives of the class of "all tenants living in multi-family housing". Clerk's Papers, at 1564.

Seattle's attempts to carry its declaratory judgment complaint forward as a class action suit were rebuffed, however when the superior court denied certification of the owner and tenant classes. Seattle then continued its action with the former class representatives as defendants, moved for summary judgment on the constitutional issues, and presented the superior court with four specific warrant applications. The warrant applications applied to two apartments at 1737 Belmont Avenue, a building co-owned by Kaercher, an apartment at 1729 Boylston Avenue, and an apartment at 924 16th Avenue, a building owned by the McCreadys.

According to declarations attached to the warrant applications, Seattle had requested consent to inspect from each of the tenants occupying the apartments for which warrants were sought and consent had been refused in each case. Clerk's Papers, at 343-44, 353-55. The declarations also described the RHIP in some detail, including the demonstration program which provided the data on which the RHIP was based. Based on these warrant applications and other documents...