Brower v. Wells

Rosellini, J.

(concurring in part, dissenting in part) — I concur with the majority's holding that former RCW 35.50-.090 is unconstitutional. I dissent to the finding of a claim for damages under 42 U.S.C. § 1983 (1982) and a corresponding award of attorney fees pursuant to 42 U.S.C. § 1988 (1982) as a matter of policy. It is manifestly unjust to impose damages and attorney fees against a city acting pursuant to a state statute later determined to be unconstitutional.

The trend in recent decisions has been to increase a city’s liability under 42 U.S.C. § 1983 . See Monell v. New York Dep't of Social Servs., 436 U.S. 658 , 56 L. Ed. 2d 611 , 98 S. Ct. 2018 (1978); Owen v. Independence, 445 U.S. 622 , 63 L. Ed. 2d 673 , 100 S. Ct. 1398 (1980). Nevertheless, the circumstances of these cases suggest this is only appropriate when a city acts pursuant to its own law or policy.

*110 Prior to Monell , a section 1983 claim could not be brought against a city. In Monell , a class of women employees sued New York City for violating their constitutional rights. New York, as a matter of official city policy, compelled women to take unpaid pregnancy leaves. The Supreme Court held that cities were no longer immune from suit and said:

Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies. Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.

(Footnotes omitted; some italics ours.) Monell , at 690.

In Owen , a suit was brought against the City of Independence, Missouri, for violation of constitutional rights. The petitioner alleged he was discharged from his job without due process pursuant to a provision of the city charter. The Owen Court held that municipalities have no immunity from damages flowing from their constitutional violations. The decision was based on an analysis of legislative history and a discussion of policy. The Court said that a rule of no immunity for cities acts as a deterrent in preventing future constitutional violations. The Court reasoned that a city official will be careful not to violate the constitutional rights of a person if he knows he may be subjecting the city to a substantial section 1983 claim.

A deterrent is only effective, however, when the city official has a real choice to make. A city official acting pursuant to state law is presented with a Hobson's choice. He can either rely on the constitutionality of state law at the risk of subjecting the city to a substantial section 1983 claim or he can seek a judicial determination on the constitutionality of the statute, assuming arguendo the city has standing. This is plainly absurd.

*111 A distinction needs to be made under section 1983 between a city acting pursuant to its own law or policy and a city acting pursuant to state law or policy. The City of Yakima was acting pursuant to state law which, until today, was recognized as valid by this court. Case v. Bellingham, 31 Wn.2d 374 , 197 P.2d 105 (1948). While I concur with the majority that the statute is unconstitutional, I dissent from placing the financial burden on the City of Yakima. A city acting pursuant to state law should be immunized from 42 U.S.C. § 1983 claims for damages and corresponding 42 U.S.C. § 1988 awards of attorney fees.

Reconsideration denied February 7, 1985.