Hudson v. City of Wenatchee

• Citation: 974 P.2d 342,94 Wn.App. 990
• Decision Date: 06 April 1999
• Docket Number: No. 17620-7-III,R,I-,17620-7-III
• Court: Washington Court of Appeals
• Parties: Harley G. HUDSON and Samantha Hudson, husband and wife, d/b/a Harley's Lock and Key, a Washington Partnership, Appellants, v. CITY OF WENATCHEE, a Washington Municipal Corporation; Kenneth C. Badgley, in his capacity as Chief of Police of the City of Wenatchee; Kenneth C. Badgley and Margaret A. Badgley, individually and as husband and wife, and John and Jane Doesespondents. Panel Seven

Page 990

94 Wn.App. 990

974 P.2d 342

Harley G. HUDSON and Samantha Hudson, husband and wife d/b/a Harley's Lock and Key, a Washington Partnership, Appellants, v. CITY OF WENATCHEE, a Washington Municipal Corporation Kenneth C. Badgley, in his capacity as Chief of Police of the City of Wenatchee; Kenneth C. Badgley and Margaret A Badgley, individually and as husband and wife, and John and Jane Does I-X, Respondents.

No. 17620-7-III.

Court of Appeals of Washington Division 3,

Panel Seven.

April 6, 1999.

John R. Bonin, Wenatchee, for Appellants.

Patrick G. McMahon, Wenatchee, for Respondents.

KATO, J.

Harley and Samanta Hudson appeal the summary judgment dismissal of their complaint against the City of Wenatchee. They contend the court erred by determining (1) the City's actions in aiding citizens locked out of their cars was constitutional, and (2) the City's actions did not interfere with a protected property interest in their business. We affirm.

The Hudsons operate Harley's Lock and Key, a locksmith service in Wenatchee. As locksmiths, they provide assistance for a $30 charge to individuals locked out of their homes and cars.

The City of Wenatchee has an informal and unwritten policy which allows police officers to open locked vehicle doors in non-emergency situations. When officers are unable to access a car, they contact a locksmith for the individual. Although Mr. Hudson contends the City only contacts his competitors, he admitted in his deposition that he has been called by the City to respond.

The Hudsons believed the City's actions interfered with their business. They notified the City of this problem. The Mayor and Commissioners told them that while the City wanted to support all businesses in the community, they felt that police helping citizens in this manner was a part of the community-based policing program and that the program outweighed the City's concern for private enterprise.

The Hudsons then filed a complaint against the City of Wenatchee. Their chief concern was that the City directs the police to unlock the cars of citizens. The Hudsons alleged the City's actions (1) constituted a gift of public funds to individuals in violation of Article VIII, Section 7 of the Washington Constitution; (2) violated 42 U.S.C. sec.1983; (3) violated their constitutional right to an uninterrupted business practice; (4) deprived them without due process of law of a protected property interest in the continuing operation of their business; and (5) constituted an intentional interference with a business expectancy. On cross motions for summary judgment, the court granted the City's motion. The Hudsons appeal.

We review orders of summary judgment de novo. Doherty v. Municipality of Metropolitan Seattle, 83 Wash.App. 464, 468, 921 P.2d 1098 (1996). Conducting the same inquiry as the lower court, we view all the facts and their reasonable inferences in the light most favorable to the nonmoving party. Id. Summary judgment may be granted only if the pleadings, depositions, and admissions on file demonstrate there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. CR 56(c). Summary judgment is appropriate if reasonable persons could reach but one conclusion from all the evidence. Hansen v. Friend, 118 Wash.2d 476, 485, 824 P.2d 483 (1992).

The Hudsons contend the City's policy of permitting police officers to unlock vehicles for citizens in non-emergency situations is an unconstitutional gift of public funds. Article VIII, Section 7 of the Washington Constitution provides:

No county, city, town or other municipal corporation shall hereafter give any money, or property, or loan its money, or credit to or in aid of any individual, association, company or corporation, except for the necessary support of the poor and infirm, or become directly or indirectly the owner of any stock in or bonds of any association, company or corporation.

The purpose of this constitutional provision is to prevent state funds from being used to benefit private interests when the public interest is not being served. Japan Line, Ltd. v. McCaffree, 88 Wash.2d 93, 98, 558 P.2d 211 (1977). A use of public funds is presumed constitutional, and the burden of overcoming that presumption lies with the individual making the challenge. City of Tacoma v. Taxpayers of Tacoma, 108 Wash.2d 679, 702, 743 P.2d 793 (1987).

A two-pronged analysis is used to determine whether a gift of public funds has occurred. CLEAN v. State, 130 Wash.2d 782, 797, 928 P.2d 1054 (1996). The court must initially determine if the funds are being expended to carry out a fundamental purpose of the government. If they are, no gift or loan of public funds has been made. Id.; Brower v. State, 137 Wash.2d 44, 62, 969 P.2d 42 (1998). If the expenditures are not serving a governmental purpose, the court must then determine if a gift has occurred by focusing on the consideration received by the public and the donative intent of the governmental entity. CLEAN, 130 Wash.2d at 798, 928 P.2d 1054.

The first inquiry is whether the City's action allowing police officers to unlock vehicles is being used to promote a fundamental purpose of government. The police power is a fundamental purpose of government. See Const. art. XI, § 11. It extends not only to the preservation of the public health, safety, and morals, but also to the preservation and promotion of the public welfare. Clark v. Dwyer, 56 Wash.2d 425, 432, 353 P.2d 941 (1960), cert. denied, 364 U.S. 932, 81 S.Ct. 379, 5 L.Ed.2d 365 (1961). This recognizes the community caretaking function of police officers and exists so they can assist citizens and protect property. State v. Menz, 75 Wash.App. 351, 353, 880 P.2d 48 (1994), review denied, 125 Wash.2d 1021, 890 P.2d 463 (1995). Courts have recognized that police officers acting in their community caretaking function occasionally perform services in addition to enforcement of the penal laws. State v. Lynch, 84 Wash.App. 467, 477, 929 P.2d 460 (1996). Many citizens look to the police to assist them in a variety of circumstances, including delivering emergency messages, giving directions, searching for lost children, assisting stranded motorists, and rendering first aid. State v. Chisholm, 39 Wash.App. 864, 867 n. 3, 696 P.2d 41 (1985). Thus, actions which fall into the community caretaking function are indeed a fundamental purpose of government.

The City's policy which allows police officers to assist citizens locked out of their cars is part of this community caretaking function. In carrying out the policy, officers are assisting citizens and promoting a fundamental government purpose. There is no unconstitutional gift of public funds.

The Hudsons next contend the court erred by dismissing their 42 U.S.C. § 1983 claim against the City. In order to establish such a claim, a plaintiff must show (1) the defendant acted under the color of state law, and (2) the defendant's conduct deprived him or her of a right guaranteed by the United States Constitution. Morinaga v. Vue, 85 Wash.App. 822, 833, 935 P.2d 637, review denied, 133 Wash.2d 1012, 946 P.2d 401 (1997). A municipality may be liable under section 1983 when it acts through an official policy. Mission Springs, Inc. v. City of Spokane, 134 Wash.2d 947, 968, 954 P.2d 250 (1998). A municipality does not have to formally adopt a policy to be liable; the actions merely need to be taken pursuant to a recognized custom. Monell v. Department of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

The City's action in permitting officers to unlock vehicles was not undertaken through a formal policy. But the City had been following this informal and unwritten policy since at least 1978 pursuant to a recognized custom.

The Hudsons claim a property interest in their locksmith business. A property interest in employment may be created and defined by rules which stem from state law. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Persons must have a legitimate claim of entitlement to their employment to have a property interest in it. Aitken v. Reed, 89 Wash.App. 474, 484, 949 P.2d 441, review denied, 136 Wash.2d 1004, 966 P.2d 901 (1998) (quoting Winegar v. Des Moines Indep. Sch. Dist., 20 F.3d 895, 899 (8th Cir.), cert. denied, 513 U.S. 964, 115 S.Ct. 426, ...