Wilson v. City of Seattle

Madsen, J.

(dissenting) — I dissent and would uphold Seattle Municipal Code (SMC) 5.24.005 as a valid procedural tool that the City of Seattle may employ in regulating the claims filed against it.

I disagree with the majority's view that municipal claims ordinances are in part an exercise of sovereign immunity in that they limit or qualify the ability of individuals to sue the *826 government. The issue is not, as the majority claims, whether SMC 5.24.005 is a valid exercise of sovereign immunity. That debate, which began in Cook v. State, 83 Wn.2d 599 , 521 P.2d 725 (1974), was put to rest in Hall v. Niemer, 97 Wn.2d 574 , 649 P.2d 98 (1982) and Jenkins v. State, 85 Wn.2d 883 , 540 P.2d 1363 (1975). Rather, the issue, as I view it, is whether the ordinance is a valid procedural prerequisite to filing a claim against Seattle based on RCW 64.40.020.

The principal purposes of the requirement that claims be presented or filed are to provide the City with full information of the rights asserted against it, to enable it to make proper investigations concerning the merits of the claims, and to settle those of merit without the expense of litigation. 17 E. McQuillin, Municipal Corporations § 48.02, at 71 (3d ed. 1993); Hall , at 581; 56 Am. Jur. 2d Municipal Corporations § 686, at 730 (1971). Such requirements protect a municipality from stale claims and give the municipality an opportunity to investigate the source of the claim when the evidence relating to it is fresh. 17 E. McQuillin § 48.02, at 71; 56 Am. Jur. 2d, supra § 686, at 730. Such requirements, however, will not be sustained if they are unreasonable and do not promote the due administration of justice. 17 E. McQuillin § 48.02, at 71.

SMC 5.24.005 states that a written claim for damages must precede an action brought against the City for which monetary damages are being claimed. After filing a written claim for damages, a party must wait 60 days to institute a lawsuit against the City unless the applicable statute of limitations will expire within that 60-day period. "The requirements of this section shall not affect in any manner the commencement and running of any applicable statute of limitations." SMC 5.24.005. Thus, if a party's action is dismissed for failure to comply with SMC 5.24.005, the dismissal is without prejudice: that party may file a written claim and again file suit. If the applicable statute of limitations will run before the 60-day period expires, a written claim and compliance with SMC 5.24.005 is not necessary. Since Seattle's ordinance can in no way deprive an individual of the right to file suit against the City of Seattle, it cannot be *827 viewed as an attempt by Seattle to immunize itself from suit.

Moreover, this court has upheld a similar claims-filing ordinance as a "minor procedural burden". Hall , at 581. The court found the burden of compliance slight and reasonably related to fostering and regulating claim settlements. Hall , at 581; 17 E. McQuillin § 48.02, at 71. Similarly, the Daggs v. Seattle, 110 Wn.2d 49 , 750 P.2d 626 (1988) opinion, cited by the majority, regards reasonable claims-filing ordinances as "procedural burdens" placed upon parties suing the State. Daggs , at 53. In contrast, the Daggs opinion noted that claims-filing laws that shorten the amount of time in which a party may sue have been struck down by this court because, in that circumstance, the substantive right to maintain suit is affected. Daggs , at 53 (citing Hunter v. North Mason High Sch. & Sch. Dist. 403, 85 Wn.2d 810 , 539 P.2d 845 (1975); Jenkins).

Notice of claims ordinances that seek to alter the applicable statute of limitations have been viewed as a governmental attempt to reinstate sovereign immunity after waiver has occurred. See Cook. Note, Notice of Claim Requirements: Judicial and Constitutional Limitations, 14 Wake Forest L. Rev. 215 (1978). Such ordinances have consistently been struck down as unconstitutional equal protection violations by this court because of their unfair creation of two statutes of limitations for a given cause of action and, thus, two classes of claimants. See Daggs, at 53. As one authority observes,

[t]he Washington courts have reasoned that such statutes impose an arbitrary burden on persons harmed by governmental misfeasance, because they require such persons to provide the government with notice of their injuries within a short time after they occur. Thus, notice of claim statutes are violative of constitutional equal protection standards, unless the statute merely requires filing of notice before the running of the statute of limitations.

(Footnotes omitted.) 17 E. McQuillin § 48.02, at 71. The ordinance at issue herein does not violate any constitutional standards because it has no impact on the applicable statute *828 of limitations. If the limitations period will run before the 60-day period expires, compliance with the ordinance is not required.

Moreover, as Justice Utter stated in a concurring opinion in Cook , the notion that immunity can be partially revived once it has been waived is questionable. At issue in Cook was the validity of a statute requiring a claimant to submit notice of a tort action to the State within 120 days of the injury. The majority analyzed the statute as a modification of the waiver of sovereign immunity. Justice Utter questioned this analysis, stating that "there can be no other conclusion but that governmental immunity for tort liability has been waived in this state." Cook , at 608-09 (Utter, J., concurring). Thus, the issue in interpreting the notice of claims provision was procedural or remedial rather than substantive. "The filing claim and the filing period are procedural requirements which may not be interpreted as conditions imposed on the substantive waiver of tort immunity." Cook , at 610 (Utter, J., concurring). This court agreed in Jenkins that sovereign immunity has nothing to do with the conditions contained in claims-filing ordinances. Jenkins , at 890.

This court has stated that RCW 64.40.020 waives vicarious municipal immunity for the quasi-judicial acts of its officials. Lutheran Day Care v. Snohomish Cy., 119 Wn.2d 91, 103 , 829 P.2d 746 (1992), cert. denied, 113 S. Ct. 1044 (1993). I am hard pressed to understand why the majority sees SMC 5.24.005 as an attempt by Seattle to somehow undermine this waiver of immunity. The ordinance states that it does not alter the applicable statute of limitations and contains procedural requirements that have been upheld in other contexts by this court. The ordinance clearly is an attempt by the City to regulate the fifing of suits against it rather than an attempt to impair the substantive rights of a party to sue. As such, it is comparable to the rules by which a court regulates the filing and initiation of a lawsuit. Such rules are used largely to prescribe the time within which certain procedural acts must be done or to prescribe *829 certain procedural formalities. 20 Am. Jur. 2d Courts § 84, at 446 (1965). The same can be said for SMC 5.24.005. The burden of compliance is slight and reasonably related to regulating claim settlements.

It seems neither realistic nor necessary to require the Legislature to expressly approve notice of claims provisions every time it creates a new cause of action against governmental entities. Such provisions should be regarded as part of a municipality's authority to recognize and regulate claims brought against it, and they should be upheld so long as they do not unreasonably burden a claimant. See 17 E. McQuillin § 48.02.

I would hold that the procedural burdens imposed by SMC 5.24.005 are a reasonable exercise of the City's authority to settle claims when possible, and are not a partial resurrection of sovereign immunity. As a result, I would affirm the Superior Court's dismissal of the RCW 64.40.020 action in this case, with the proviso that the action may be refiled after the requirements of SMC 5.24.005 are satisfied.

Durham and Guy, JJ., concur with Madsen, J.