Zimmer v. City of Seattle

• Decision Date: 24 April 1978
• Docket Number: No. 5479-I,5479-I
• Citation: 19 Wn.App. 864,578 P.2d 548
• Parties: Mathilda E. ZIMMER, on behalf of her minor daughter and all others similarly situated, Appellant, v. The CITY OF SEATTLE, a Municipal Corporation, Robert L. Hanson, Chief of Police, and Randolph Vanderway, Respondents.
• Court: Washington Court of Appeals

Page 864

19 Wn.App. 864

578 P.2d 548

Mathilda E. ZIMMER, on behalf of her minor daughter and all others similarly situated, Appellant, v. The CITY OF SEATTLE, a Municipal Corporation, Robert L Hanson, Chief of Police, and Randolph Vanderway Respondents.

No. 5479-I.

Court of Appeals of Washington,Division 1.

April 24, 1978.

Evergreen Legal Services,

Peter Greenfield, Seattle, for appellant.

Douglas N. Jewett, City Atty., Elizabeth A. Huneke, Asst. City Atty., Stafford, Frey & Mertel, Thomas D. Frey, Seattle, for respondents.

JAMES, Judge.

The single issue presented by this appeal is whether the requisite elements for a class action are present. The trial judge concluded that they were not. We do not agree.

There is no factual dispute. Plaintiff, Mathilda E. Zimmer, is the mother of a minor daughter, Marian, who was on two occasions taken into custody by Seattle police and eventually released to the custody of her parents. On both occasions, the officer first determined that Marian was a "dependent child" as defined by RCW 13.04.010(4), (7), (8) and (11) ¹ which provide:

For the purpose of this chapter the words "dependent child" shall mean any child under the age of eighteen years:

(4) Who frequents the company of reputed criminals, vagrants or prostitutes; or (7) Who is incorrigible; that is, who is beyond the control and power of his parents, guardian, or custodian by reason of the conduct or nature of said child; or

(8) Who is in danger of being brought up to lead an idle, dissolute or immoral life; or

(11) Who wanders about in the nighttime without being on any lawful business or occupation;

She was taken into custody pursuant to RCW 13.04.120 ² which authorizes the "taking into custody, without process, any child . . . whose surroundings are such as to endanger his health, morals or welfare, unless immediate action is taken."

Zimmer commenced this action for injunctive and declaratory relief and damages as guardian ad litem of her minor daughter challenging the constitutionality of the statutes relied upon by the police. ³ Zimmer moved to pursue her claims "as representative of the class of children who have been or will be taken into custody by officers of the Seattle Police Department relying on the authority of RCW 13.04.010(4), (7), (8) or (11) or RCW 13.04.120." Her motion for leave to maintain the action as a class action was denied by Judge Stanley C. Soderland.

Zimmer then moved for a partial summary judgment on the merits. Her motion was heard by Judge Robert W. Winsor, who ruled that

RCW 13.04.010(4), (8) and (11), and that portion of RCW 13.04.120 which allows a child to be taken into custody, without a warrant, if the child's "surroundings are such as to endanger his health, morals or welfare, unless immediate action is taken," are unconstitutionally vague. Further, defendants, their subordinates and successors are ENJOINED from enforcing the provisions referred to above against Marian Zimmer. And, finally, it appearing that there is no just reason for delay, it is

ORDERED that this partial summary judgment shall be entered as a final judgment, in accordance with CR 54(b), as to the claims for declaratory and injunctive relief which it adjudicates.

The City has not appealed from Judge Winsor's partial summary judgment declaring the unconstitutionality of the statutes. We therefore review only Judge Soderland's refusal to permit a class action.

Class actions are authorized in Washington by RCW 4.08.070 and by Civil Rule 23 (CR 23). The provisions of CR 23 relied upon by Zimmer are as follows:

(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:

(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; . . .

By an Agreed Report of Proceedings, the parties have stipulated that Judge Soderland ruled that a class action could not be maintained because:

1. Plaintiff had not established the numerousness of the class.

2. Plaintiff's allegations required a consideration of the facts of individual cases.

3. Plaintiff's request for a class action against defendants, The City of Seattle and its agents Robert L Hanson and Randolph Vanderway, regarding the validity of a state statute was inappropriate.

We first consider the question of "numerousness."

CR 23 requires the class be so numerous that "joinder of all members is impracticable." The officer who took Marian into custody testified that during the past 2 years, more than 200 children had been taken into custody by Seattle police pursuant to the provisions of RCW 13.04.120. Joinder of these class members is impracticable because, according to the officer's testimony, the police department kept no records of these arrests.

The class members who, in the future, will be taken into custody if the police continue to act in reliance upon RCW 13.04.120 are inherently unidentifiable. Under these circumstances, the joinder of all members of the class is not only impracticable it is impossible.

We next consider Judge Soderland's holding that Zimmer's allegations required a consideration of the facts of the individual cases.

Whether the "facts of individual cases" must be considered depends upon the relief sought. The Agreed Report of Proceedings recites that:

At the hearing, plaintiff restricted her request, asking only for leave to seek a declaration that RCW 13.04.010(4), (8) and (11), and that portion of RCW 13.04.120 which authorizes the arrest, without a warrant, of a child "whose surroundings are such as to endanger his health, morals or welfare, unless immediate action is taken," are unconstitutionally broad or vague or both, and to seek an injunction against the enforcement of those provisions, as representative of the class of children who have been or will be taken into custody by officers of the Seattle Police Department relying on the authority of the challenged provisions.

In its brief on appeal, the City concedes that "(i)f a statute is vague on its face, the particular facts of an individual case need not be considered by the Court."

In In re Johnson v. Moore, 80 Wash.2d 531, 535, 496 P.2d 334, 336 (1972), it was held that A class action is therefore appropriate, since there are issues of law common to all members of the class as required by CR 23(a)(2), and the respondent has "acted or refused to act on grounds generally applicable to the class." CR 23(b)(2).

The basis for the holding was that:

A class action injunction proceeding, (as distinguished from a habeas corpus action), places in issue only the constitutionality of the presumably unvarying standards applied in holding members of the class "on suspicion" of various charges without bringing them before a magistrate.

In re Johnson v. Moore, supra at 535, 496 P.2d at 336. The members of the asserted class in In re Johnson were individuals who had been arrested by Seattle police and held in jail "on suspicion" of...