Whatcom County v. City of Bellingham

Decision Date01 February 1996
Docket NumberNo. 63199-9,63199-9
Citation909 P.2d 1303,128 Wn.2d 537
CourtWashington Supreme Court
PartiesWHATCOM COUNTY, Respondent, v. CITY OF BELLINGHAM, Appellant, v. STATE of Washington, Third Party Defendant.

Bruce Disend, Bellingham City Attorney, Dawn Sturwold, Asst., Bellingham, Foster, Pepper & Shefelman, Peter DiJulio, Seattle, for appellant.

Joseph E. Shorin, III, Olympia, for defendant.

David McEachran, Whatcom County Prosecutor, Bellingham, for respondent.

TALMADGE, Justice.

The City of Bellingham (City) appeals from a partial summary judgment requiring it to arbitrate the amount it must reimburse Whatcom County (County) for certain costs which were shifted to the County after the City's 1980 repeal of the vast majority of Title 10 of the Bellingham Municipal Code, the portion of its municipal code which defined crimes.

RCW 3.50.800 forbids cities which have enacted a municipal criminal code and enforced such a criminal code in their municipal courts from repealing such code "in its entirety" prior to July 1, 1984, so as to impose additional criminal justice system costs on county government. We find that the City's actions here constituted a de facto repeal of "that portion of its municipal code defining crimes" for purposes of RCW 3.50.800, and we affirm the decision of the trial court.


1. For purposes of RCW 3.50.800, which requires arbitration between a city and a county where, prior to July 1, 1984, the city repeals "in its entirety that portion of its municipal code defining crimes," is the statute satisfied by a "de facto" repeal?

2. Did the City offer sufficient evidence to raise a genuine issue of material fact whether its actions constituted a de facto repeal prior to July 1, 1984, of "that portion of its municipal code defining crimes" where the City repealed all but a few crimes in Title 10 of its municipal code, presented no evidence of prosecution between 1981 and July 1, 1984 of its few remaining Title 10 crimes, and closed its jail?


In August 1980, Bellingham's Mayor told the City Council the City could no longer afford a jail system. He proposed that the City transfer the jail and court system (except for minor cases in which jail sentences were not involved) to the County. Accordingly, the Council's Public Safety Committee recommended the transfer of the city jail and court system to the County, except for minor offenses involving fines. The County's district court was informed that the transfer would occur in January 1981. 1 The Mayor also requested that arrangements be made for the County to house "any future Municipal prisoners ... should the rare occasion arise when under some little-used section of the Municipal Code, this becomes necessary." Clerk's Papers at 102. The Mayor told the City Attorney and Police Department to draft ordinances "repealing those sections of the Municipal Code which currently include jailable offenses." Clerk's Papers at 103. The ordinances were drafted and introduced.

In December 1980 hearings on the ordinances, the City Attorney testified before the City Council Public Safety Committee that the proposed ordinances would repeal almost all offenses which carried jail penalties, delete jail penalties for violations of the vehicle code, and exclude jail as a penalty for misdemeanors generally. He noted a few remaining offenses which carried jail time would remain in force, but would not be a problem, because violations were "rare." Clerk's Papers at 107-09.

The ordinances were passed and made effective January 1, 1981. Ordinance 8919 repealed most traffic violations, such as DWI, driving while suspended, and reckless driving. Ordinance 8920 altered the definition of misdemeanor to generally exclude jail as a penalty, and repealed nearly all crimes in Title 10 of the Bellingham Municipal Code, the Title which defined crimes, including those dealing with theft, stolen property, bad checks, altering vehicle identification numbers, injury to property, burglar tools, trespass, vehicle prowling, public morals, false reporting, disrupting schools, breach of the peace, fighting, drinking in public, sales of liquor to intoxicated persons, offenses by or against public officers, firearms and weapons offenses, and curfew. Prior to July 1, 1984, a few crimes remained in Title 10 of the Bellingham Municipal Code, including shoplifting, driving on public lawns, litter, nuisance, and marijuana possession. 2

As the City acknowledged below:

The City made a conscious policy decision that duplication of the State's efforts at criminal enforcement was not in the public interest, and chose to only proscribe and enforce those criminal sanctions that were not already reflected under State law.

Clerk's Papers at 80.

After January 1, 1981, the City closed its jail and instructed its law enforcement officers to charge offenders under state law. The County tried to collect fees for the incarceration of prisoners who were charged under state law by City officers. The City placed fees into a fund under protest, and sued the County, seeking declaratory and injunctive relief. The suit was dismissed on January 14, 1982, with an agreement that the City would not be obligated to pay the County for processing of City prisoners under state law and attendant jail services "unless state laws are amended to impose such obligation upon cities or the State Supreme Court rules" that a county could collect such costs. Clerk's Papers at 347-50. The County kept all payments made by the City for such costs and agreed that the retained fees "shall constitute full and complete payment for any costs or damages suffered by the County on account of the City's closure of its jail and repeal of certain jailable offenses." Id. The agreement also provided that in the future, the City would compensate the County for accepting any "City misdemeanants." Id.

In 1984, the Legislature enacted the Court Improvement Act (the Act) whose pertinent provisions prohibit municipalities from repealing that portion of their municipal codes defining crimes or terminating their municipal courts without making provision for the fiscal impact of such actions with the affected counties. The Act applied to a repeal occurring prior to July 1, 1984, but only required a city to reimburse a county for post-January 1, 1985 costs. Laws of 1984, ch. 258, § 202; RCW 3.50.800.

On May 26, 1992, the City amended its general definition of misdemeanor, reinstating jail time as a penalty for committing a misdemeanor.

In October 1993, the County filed this declaratory judgment action seeking to compel arbitration under the Act for the fiscal implications of the City's actions in 1980-81 with respect to the City criminal code and shift of criminal justice costs to the County. The City moved, and the County cross-moved, for summary judgment. The City argued RCW 3.50.800 required a city to repeal its criminal code "in its entirety" before an obligation to share in the costs of law enforcement could arise. It contended that keeping "one simple little statute" on the books would allow a city to escape the mandate of the statute. Supplemental Clerk's Papers at 34-35. The County contended, under the definition set forth in RCW 9A.04.040, offenses without jail time as a penalty were not crimes. Alternatively, the County argued that the City had de facto repealed all of its municipal criminal code.

Noting that the objective of RCW 3.50.800 was to prevent a city from keeping profitable traffic business while "dumping the loss end" (jury trials in criminal cases) on the counties, the trial court ruled that "if the city in effect, bows out of the criminal business," the statute would apply. Supplemental Clerk's Papers at 39. The trial court specifically referenced the City's in-court admission that the City had not prosecuted or jailed anyone since 1981 under the handful of crimes that were kept on the books:

[T]here should not be a triumph here of form over substance and that is what it would be, an escape through a loophole that makes no sense at all. A loophole created by this handful of statutes that mean nothing. They are not prosecuted. They are not jailed. Bellingham has no jail, doesn't own a jail, and so should these little ordinances sit there to defeat this statute? I think not.

Id. The trial court denied the City's motion, granted the County's cross-motion for summary judgment, and ordered arbitration.

The City moved for reconsideration, alleging it had continued to prosecute and incarcerate persons for certain misdemeanors under City ordinances after 1980. The City provided evidence of its payments to the County from 1984-94 for the cost of jailing certain prisoners referred by the City. The County claimed the incarcerations arose out of civil infractions only (failure to comply with court orders, pay fines, or appear), rather than the crimes in the City's municipal criminal code.

The trial court denied the motion for reconsideration and entered a partial summary judgment with CR 54(b) findings. 3 The City appealed to Division One of the Court of Appeals, and the appeal was certified to this court pursuant to RCW 2.06.030. We accepted certification.


As the City properly notes, counties are generally responsible for costs of administering criminal laws within their boundaries. State v. Agren, 32 Wash.App. 827, 828, 650 P.2d 238 (1982). It is equally true, however, that cities historically assumed responsibility for criminal justice activities by enacting municipal criminal codes, employing city attorneys to prosecute the crimes created by such codes, creating municipal courts, and erecting city jails, as did the City of Bellingham here. See RCW 3.46, 3.50, and 35.22.280(35) (authority to try and punish crimes). If cities precipitously abandoned a role they had undertaken for criminal justice activities, a significant cost would be imposed upon counties,...

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