DeBoer v. City of Bellingham, 97-35363
| Decision Date | 17 March 2000 |
| Docket Number | No. 97-35363,97-35363 |
| Citation | 206 F.3d 857 |
| Parties | (9th Cir. 2000) DEAN DEBOER; LUANNE DEBOER, Plaintiffs-counter-defendants-Appellants, v. CORRINE PENNINGTON; CAROL BROWDER; JANE DOE DOUGLAS; TIMOTHY CARPENTER; JANE DOE DISEND; JANE DOE LITTLE; JANE DOE AYERS; JOHN DOE BJORNSON; JANE DOE HANNA; JANE DOE GISCHER; JANE DOE KNUTSON; JANE DOE HALL; JOHN DOE PENNINGTON; JOHN DOE BROWDER; JANE;DOE ROWE, OPINION Defendants-Appellees, And CITY OF BELLINGHAM; TIM DOUGLAS; LYNN CARPENTER; BRUCE DISEND; RICHARD LITTLE; BRUCE AYERS; LOUISE BJORNSON; ARNE HANNA; PAT ROWE; DON GISCHER; GENE KNUTSON; BOB HALL, Defendants-counter-claimants-Appellees |
| Court | U.S. Court of Appeals — Ninth Circuit |
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] COUNSEL: Kurt Denke, Seattle, Washington, for the plaintiffs-appellants.
Peter Berney, Assistant Attorney General, Olympia, Washington, for defendants-appellees Carol Browder and Corine Pennington.
Robert L. Christie, Johnson & Martens, Seattle, Washington, for the defendants-appellees.
Appeal from the United States District Court for the Western District of Washington; William L. Dwyer, District Judge, Presiding. D.C. No. CV-95-01402-WLD
Before: William C. Canby, Jr. and A. Wallace Tashima, Circuit Judges, and Robert M. Takasugi,* Senior District Judge.
Opinion by Judge Takasugi
In this appeal, we consider whether city and state officials are entitled to qualified immunity for entering city-owned premises and seizing the business and personal records and the personal property of an individual where the city and the individual had agreed that "[f]inancial records for audit purposes shall be made available to the [c]ity and any other governmental agency with jurisdiction," and whether the agreement between the city and the individual created a constitutionally protected property interest.
In November 1993, the City of Bellingham, Washington (the "City") entered into a written agreement (the "Agreement") with D & M Operating Company ("D & M"), to manage the City-owned Bayview Cemetery ("Bayview"), from January 1, 1994, to December 31, 1998. The Agreement was signed on behalf of the City by the mayor, Tim Douglas ("Douglas"), and on behalf of D & M by Dean DeBoer ("DeBoer"). Under the Agreement's terms, D & M would sell graves and merchandise, maintain records, schedule funerals and to some extent, maintain Bayview's grounds. In return, the City would pay D & M a monthly fee and a portion of the proceeds of Bayview's monuments and memorials sales.
Article X of the Agreement provides that the Agreement could be terminated for cause or convenience,1 and Article V of the Agreement sets forth D & M's obligation to maintain Bayview's financial records.2
In addition to his involvement with D & M, DeBoer operated another business, Cascade Memorials, which sold grave markers to the City.
Beginning in January 1994, DeBoer maintained an office at Bayview and managed Bayview pursuant to the Agreement's terms. In the fall of 1994, the City commissioned an independent certified public accountant to audit Bayview's financial records for time periods both prior to Bayview's association with D & M and after the Agreement was in effect. The accountant examined the financial records of Bayview from January 1, 1989 through June 30, 1994, and discovered that D & M had overand under-billed the City on a number of contracts which resulted in the City's overpayment, in an amount totaling $21,151.00. Shortly thereafter, the City conducted an audit of the City's purchases from Cascade Memorials and discovered that the City had also overpaid Cascade Memorials, in the amount of $2,906.00. DeBoer, claiming that the billing errors were unintentional, returned the City's overpayments.
In a letter dated December 13, 1994, the City notified DeBoer of its intent to terminate the Agreement for convenience pursuant to Article X, Section B. The City further advised DeBoer that it was also exercising its right to terminate the Agreement for cause pursuant to Article X, Section A, and listed the reasons for termination. DeBoer's attorney notified the City in a letter dated December 28, 1994 that DeBoer intended to take the full sixty days provided in Article X, Section B of the Agreement to decide whether to terminate the Agreement for convenience. The letter also informed the City that, in accordance with Article X, Section A, DeBoer had eliminated or rectified each of his alleged violations of the Agreement charged within fifteen days of the City's notice.
Thereafter, on January 23, 1995, the City Council decided that it would send another letter terminating the Agreement and that Bayview's records should be secured in order to preserve the possibility of further audits. On January 27, 1995, the City's finance director, Lynn Carpenter ("Carpenter") met with Corinne Pennington and Carol Browder (collectively the " ") of the Washington State Auditor's Office, and requested that the State Defendants perform an audit of Bayview's financial records. The State Defendants refused to subpoena and audit Bayview's records, but indicated to Carpenter that they may be able to "rehabilitate" Bayview's records once the Agreement was terminated.
On January 30, 1995, City Councilman Bruce Ayers ("Ayers"), Assistant City Attorney Dick Little ("Little") and Carpenter met with officers of the City's Police Department and expressed a desire for a criminal investigation into DeBoer's accounting for possible fraud. They also requested the police obtain a search warrant because the City planned to terminate the Agreement with D & M the following day and feared that records proving the alleged over-billings were intentional might be destroyed. Ayers informed the police that some of the information was contained on computers. He also informed the police that at least one computer belonged to DeBoer and was not the property of the City. The attempt to obtain a search warrant was unsuccessful.
On January 31, 1995, the City Council directed the City Attorney Bruce Disend ("Disend") and Little to prepare a termination letter addressed to DeBoer. The letter was drafted, and it stated that the City's position was that the Agreement was terminated for cause effective in fifteen days, on February 15, 1995, pursuant to Article X(A)(2) of the Agreement. The letter also stated that DeBoer was to leave Bayview immediately and to leave behind "all records and property of whatever nature pertaining to Cascade Memorials and D & M Operating Company." Several City employees accompanied by police officers delivered the termination letter to DeBoer at Bayview, forced DeBoer to leave the premises under threat of arrest and sealed the grounds. DeBoer removed blank checks from the Bayview office, but the business records of D & M and Cascade Memorials and DeBoer's personal records, and equipment including, a truck, tractor, backhoe, photocopy machine and other memorial manufacturing equipment were sealed on Bayview grounds. The State Defendants advised the City employees on-site of the records, including computer files and cabinets, necessary to conduct an audit. The following day, the records were removed from the premises for an audit by the State Defendants.
In late February, DeBoer was allowed to return to reclaim his equipment. His records were returned by the State Defendants some months thereafter.
DeBoer and his spouse, Luanne DeBoer, (collectively the "DeBoers") filed suit against the City, seven City Council members,3 Douglas, Disend, Little, Carpenter, the State Defendants and the spouses of these individual defendants, for violation of the DeBoers' due process and Fourth Amendment4 rights under 42 U.S.C.S 1983 and against the City for breach of contract.
The DeBoers moved for partial summary judgment on their claims asserting deprivation of rights guaranteed by the Fourth Amendment. City employees Carpenter, Disend, Douglas, Little and the City Council members (collectively the "Bellingham Defendants") and the City filed a crossmotion for partial summary judgment as to the same claim. State Defendants moved for partial summary judgment as to the DeBoers' civil rights claims. The district court ruled that the State Defendants could not be held liable for the termination of the Agreement as no issue for trial existed as to their involvement in the termination, thereby granting partial summary judgment in favor of State Defendants on the DeBoers' due process claim. The district court, however, denied the cross-motions with respect to the DeBoers' Fourth Amendment claim.
The Bellingham Defendants and the City then moved for partial summary judgment as to the DeBoers' S 1983 claim for violation of their due process rights and claim for breach of contract. The district court concluded that the Agreement did not afford a property right subject to due process protection, granted partial summary judgment on the DeBoers' due process claim, and denied the City's motion on the breach of contract claim.
Thereafter, the Bellingham Defendants moved for partial summary judgment on the DeBoers' S 1983 claim for violation of their Fourth Amendment rights asserting qualified immunity. The DeBoers brought a cross-motion. The district court granted summary judgment in favor of the Bellingham Defendants and denied the DeBoers' motion, ruling that the Bellingham Defendants were entitled to qualified immunity because reasonable officials could have believed that their actions were lawful. Because of this ruling, the DeBoers stipulated to, and the district court ordered, the dismissal of the DeBoers' Fourth Amendment claim against the State Defendants because the DeBoers conceded that the State Defendants would also be entitled to qualified immunity pursuant to the court's reasoning. The parties subsequently stipulated to granting final...
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