Shouse v. Pierce County
| Decision Date | 25 August 1977 |
| Docket Number | No. 76-2790,76-2790 |
| Parties | Jack SHOUSE, David Romer, E. A. Baxendale, and Alice M. Baxendale, Plaintiffs-Appellants. v. PIERCE COUNTY, a political subdivision of the State of Washington, Clay Huntington, Patrick J. Gallagher, and George P. Sheridan, County Commissioners, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Richard B. Sanders, Seattle, Wash., argued for plaintiffs-appellants.
Mark L. Bubenik, Deputy Pros. Atty., Pierce County, Edwin Wheeler, Associate Counsel, argued, Tacoma, Wash., for defendants-appellees.
Appeal from the United States District Court for the Western District of Washington at Tacoma.
Before HUFSTEDLER and TRASK, Circuit Judges, and BURNS, * District Judge.
The appellants brought this civil rights action (42 U.S.C. § 1983) to challenge the constitutional validity of the formation of a Utility Local Improvement District ("Utility District"), created to provide a municipal sewer system, on the ground that the state statute, pursuant to which the Utility District was formed (R.C.W. 36.94.240), violated the Equal Protection Clause of the Fourteenth Amendments. The appellants sought to enjoin the appellees from financing and constructing the proposed sewer system. The case was initially heard by a three-judge district court. That court dismissed the action on the grounds that it was barred by limitations and laches, but commented that if it were to reach the merits, it would decide against appellants on the authority of Field v. Barber Asphalt Paving Co. (1905) 194 U.S. 618, 24 S.Ct. 784, 48 L.Ed. 1142 and Salyer Land Co. v. Tulare Lake Basin Water Storage District (1973) 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659.
The appellants appealed to the Supreme Court. By Memorandum Order dated April 19, 1976, the Supreme Court vacated the district court's dismissal "with directions to enter a fresh Decree from which a timely appeal may be taken to
United States Court of Appeals for the Ninth Circuit." 1 The three-judge district court thereafter filed a decree of dismissal in which it incorporated its opinion earlier filed, designating that opinion as its findings of fact and conclusions of law in accordance with Rule 52(a), Federal Rules of Civil Procedure. This appeal followed.
The Board of Commissioners of Pierce County, State of Washington, proposed a resolution to form a Utility District for three unincorporated communities within the County to construct sewers for those communities. The resolution was formally adopted on June 18, 1973. The appellants filed this action on September 5, 1973. The appellants are tenants and small landowners who own property and/or reside within Pierce County; all of the appellants are registered voters within the County. The challenged Utility District was created pursuant to authority delegated to county governments by Chapter 36.94.240, Revised Code of Washington. 2 On April 30, 1973, the Board declared its intention to form the challenged Utility District and directed that a public hearing upon that action be conducted before the Board on May 30, 1973. The Board informed the property owners of the proposal by a direct mail notice of the hearing. Accompanying each notice was a statement estimating the increase in assessments of the particular property if the sewer project were approved. The estimated assessments were based upon factors, among others, of area, frontage, and "equivalent capacity" charges, as well as the number of residential or commercial units on the property.
After the hearing, the Board unanimously adopted the resolution forming the Utility District. The Washington statute, which underpins the resolution, provides in part:
"(T)he jurisdiction of the commissioners to proceed with any improvement initiated by resolution shall be divested by protests filed with the clerk of the board prior to said public hearing signed by the owners, according to the records of the county auditor, of at least forty percent of the area of the land within the proposed local district." (R.C.W. 36.94.240.)
Real property owners to whom the notices were sent were supplied with protest forms and told that those forms could be filed with the Clerk of the Board by return mail. Within the time allotted by statute, about 22 percent of the landowners whose property was subject to assessment filed protests.
The appellants other than Shouse, a small landowner, did not file protests because they were not permitted any protest vote. Shouse was not totally disenfranchised in respect of the protest, but he claims that his voting power was diluted because the statutory scheme weighted the protest votes against small landowners.
Appellants contended below and here claim that R.C.W. 36.94.230 is unconstitutional because it permits only owners of real property within the County to divest the Commission of its power to form the Utility District by resolution. The nonlandowning tenants, who are thus disenfranchised, contend that the statute denies them equal protection, relying on such cases as Phoenix v. Kolodziejski (1970) 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523. Shouse, who was both a small landowner within the Utility District and a tenant, claims that the provision of the statute that weights the landowner's vote in proportion to the area of land owned denies him equal protection by diluting his franchise and that of other owners of small parcels of land. The appellants sought a declaration that the protest vote portion of the statutory scheme is unconstitutional, that the resolution falls with it, and that financing and construction of the sewer project purportedly authorized by the resolution be enjoined.
We cannot agree with the district court that the appellants' claim for relief was barred by limitations or laches. The district court reached that conclusion on the assumption that the limitation provision within the statute attacked was applicable to this Section 1983 action. 3 The assumption is wrong.
Federal law controls the limitations issues in actions brought under 42 U.S.C. § 1983. (McNeese v. Board of Education (1963) 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622. 4 Because no federal statute of limitations has been enacted, the federal law has adopted those state limitations provisions which the federal court deems applicable to the federal cause of action. 5 When we select the state statute from the available candidates, we try to choose that statute which applies to those state actions that resemble our Section 1983 action and that are sufficiently generous in the time periods to preserve the remedial spirit of federal civil rights actions. 6
The built-in limitation period prescribed by R.C.W. 36.94.240 cannot be applied to this Section 1983 action. The statute was not designed to reach federal constitutional attacks on the statute itself, but, even if that intent were present, we would not borrow a 30-day limitations period in a civil rights action. The provision in question closely resembles claims statutes, rather than statutes of limitations, imposed to require notice and filing of claims against public officers and municipal governments as conditions precedent to filing suit. We have specifically refused to engraft claims provisions of this kind upon federal civil rights actions. (Donovan v. Reinbold (9th Cir. 1970) 433 F.2d 738.) 7
The state limitations statute that we have repeatedly borrowed is a statute that prescribes the limitations for actions founded on a liability created by statute. (Bergschneider v. Denver (9th Cir. 1971) 446 F.2d 569; Ney v. State of California (9th Cir. 1971) 439 F.2d 1285; Donovan v. Reinbold, supra, 433 F.2d 738; Smith v. Cremins (9th Cir. 1962) 308 F.2d 187.) That choice is unavailable here because Washington does not have such a statute.
Two Washington catch-all statutes are the only ones that are potentially suitable: (1) R.C.W. 4.16.080(2), restricting to three years an action "for any other injury to the person or rights of another not hereinafter enumerated," and (2) R.C.W. 4.16.130, limiting to two years "an action for relief not hereinbefore provided for." We have some authority in our Circuit that the proper statute to borrow is the former. (Horn v. Bailie (9th Cir. 1962) 309 F.2d 167 ( ).) The Washington Supreme Court has not clearly decided whether actions founded upon a state statute fall in one or the other statutory category. The Washington law is fairly described in State ex rel. Bond v. State (1962) 59 Wash.2d 493, 498, 368 P.2d 676, 679, as follows: An action based on a statute "may or may not" fall within R.C.W. 4.16.130 We need not resolve the question in this case because the action was brought long before the shorter of the two limitations periods could have run.
The laches doctrine is inapplicable. The appellants filed suit very promptly. It is extremely rare for laches to be effectively invoked when a plaintiff has filed his action before limitations in an analogous action at law has run. Laches cannot be successfully raised in absence of the defendant's pleading and proof of prejudice caused by the delay in filing suit. No such prejudice has been either pleaded or proved in this case. Difficulties caused by the pendency of a lawsuit, and not by delay in bringing the suit do not constitute prejudice within the meaning of the laches doctrine.
The primary burden of the briefs on appeal is a discussion of the interesting and difficult...
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