Motion to Dismiss or Affirm — Nave v. City of Seattle

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In The

Supreme Court of the United Genie

OctToBER TERM 1966

a Fé

CHARLES A. Nave, Appellant,

vs.

THE City or SEATTLE, Appellee.

On APPEAL FROM THE SUPREME COURT OF THE

ABTETE OF WASHINGTON

MOTION TO DISMISS OR AFFIRM

A. L. NEWBOULD

Corporation Counsel

CHARLES R. N ELSON

Assistant .-

Attorneys for Appellee

. The City of Seattle

10th Floor

Seattle Municipal Building

Seattle, Washington 98104

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TABLE OF CASES

Belflower v. Blackshere, 281 P.2d 423, |

. 49 ALR 2d 917 (Okla. AR alana er 9)

Fay v. New York, 332 U.S. 261,

67 S.Ct. 1613, 91 L. Ed. 2043 0.0... we.

International Contract Co.-v. Seattle, :

74 Wash. 662, 134 P. 502 (1918) ...00 2 5)

Keesling v. Seattle, 52 Wn.2d 247,

BS EG fe RS ine ee ee RU 5

Inndblom v. Seattle, 86 Wash. 305,

SR CI ei iiveitcdi 5

Nave v. Seattle, 68 Wash, Dec. 2d 714, 415 P.2d 93 3

Seattle v. Nave, 62 Wn.2d 446, 383 P.2d 491 ............ 2

Sheer v. Everett, 134 Wash. 385,

ei a 4, 5

STATUTE _ |

Revised Code of Washington (R.C.W.)

RGA, MMR ni er 2,3, 4

CONSTITUTIONS

United States Constitution, Amendment 7 .............. 6

United States Constitution, Fourteenth.

Amendment, Section 1 a sclasadihieaieamiiaciael acs a tia: 7

Washington Constitution, Article I, Section 21. 6, 7

?

Seattle Charter Article IV; Section 24

OTHER AUTHORITY

-]

In The

Supreme Court of the United States —

OcToBER TERM 1966 . (2 aaa

CuarLEs A. Nave, Appellant,

. vs.

THE CITY OF SEATTLE, A ppellee.

_ On APPEAL FROM THE SUPREME COURT OF THE

STATE OF WASHINGTON

‘MOTION TO DISMISS OR AFFIRM

The appellee, The City of Seattle, moves the court”

to dismiss the appeal herein on the ground that it

does not present any federal question, or in the alter-

native affirm the judgment of the Supreme: Court of

the State of Washington on the ground that the judg-

ment rests on an adequate non-federal basis.

STATEMENT

Appellant was arrested on December 20, 1961 and

charged with the violation of certain provisions of _

two Seattle City Ordinances, to wit: failing to comply

with a traffic sign requiring a right turn and resisting

2.

an officer. He was tried and found guilty on both.

charges by the municipal court of Seattle. He appealed

_ to the superior court and was again found guilty. He

appealed to the supreme court which reversed ap-

pellant’s convictions on both counts and ordered the

City’s complaint to be dismissed. Seattle v. Nawe, 62

Wn.2d 446, 383 P.2d 491. The remitttur from the

supreme court came down on September 13, 1963.

_ On December 6, 1963 appellant filed a claim for

damages against The City of Seattle with the city

clerk and on December 10, 1963 he filed a supplement

to this claim.

On February 10, 1964 appellant started “the civil

action which is the subject of this appeal by filing his

complaint with the clerk of King County and serving

a copy on appellee, wherein he sought judgment

against appellee for damages allegedly occurring at

and subsequent to the time of his arrest on December

20, 1961. The latest date which his complaint alleged .

he received any injury was March 5, 1962. Thereafter

‘appellant ’s case against appellee was set to be tried

‘on January 27, 1965 before a jury. On J anuary 6,

1965 appellee served and filed its motion for summary

judgment, based on the ground that appellant had

not filed his claim against appellee within the time re-

quired by’ statute, Revised Code of vege

‘(R.C.W.) 35. 31.010.

— ~m——2 —-7- .

:

On January 25, 1965 appellee’s motion was granted

by the trial court for the Yeason that appellant had

not filed his claim against appellee within the time

required by R.C.W. 35.31.010 supra, and appellant’s

action was dismissed with prejudice. Appellant per-

fected an appeal to the supreme court of the State

of Washington which affirmed the trial court in Nave

v. Seattle, 68 Wash. Dec. 2d 714, 415 P.2d 93. (This

‘decision is set out in full in Appendix A herein).

ARGUMENT -

It is submitted that the decision of the supreme

court of the State of Washington affirming the trial

court is a correct pronouncement of Washington law

which does not involve or give rise to any federal

constitutional questions. The trial court granted ap-

pellee’s motion for summary judgment on the ground

that appellant had not met a condition precedent to —

the maintenance of an action against a first class city

such as The City of Seattle by filing a claim in ac-

cordance with R.C.W. 35.31.010, the — part of

which provides as follows:

. “R.C.W. 35.31.010 First Class Cities — Time

for Filing. All claims for damages against any

city of the first class must be filed with the city

clerk or other proper officer within ninety days

from the date that the damage occurred or the

injury was sustained: Provided, That claims for

damages arising from an alleged defective side-

walk must be filed within thirty days from the date

the damage occurred or the injury was sustained.’’

2 LE EEG NLL ONL PRR ee

¥

4

Seattle Charter Article IV, Section 24 relating to

claims for damages against the city provides as .

follows:

“CLAIMS FOR DAMAGES: All claims for

damagés against the city must be presented to the

city council and filed with the clerk within thirty

days after the time when such claim accrued, and

no ordinance shall BW passed allowing any such

claim or any part thereof, or appropriating money

or other property to pay or satisfy the same or |

any part thereof, until such claim has first been

referred to the proper department, nor until such

department has made its report to the city council

thereon, pursuant to such reference. All such

_ claims for damages must accurately locate and

describe the defect that caused the injury, ac-

curately describe the injury, give the residence

for six months. last past of the claimant, contain

the items of damages claimed, and be sworn to

by the claimant. No action shall be maintained .

against the city for any claim for damages until

the same has been presented to the city council

and sixty days have elapsed after such presenta-

tion.”’ |

The thirty day filing period in said Charter pro-

vision was superseded by the ninety day provision of

R.C.W. 35.31.010 set forth above except with regard

to sidewalk claims. |

The timely filing of a claim in accordarce with the

above statutory and charter provisions is a condition

precedent to the maintenance of an action for damages :

against- Washington cities. Keesling v. Seattle, 52 Wn.

‘2d 247, 324 P.2d 806 (1958); Sheer v. Everett, 134

»—e ot i — 8-

Wash. 385, 235 P. 789 (1925) ; Lindblom v. Seattle, 86

Wash, 305, 150 P. 422 (1915) ; International Contract

Co. v. Seattle, 74 Wash. 662, 134 P. 502 (1913).

The Washington court correctly ruled heréin that

appellant’s claim was not timely with regard to a pos-

sible action for false arrest or false imprisonment

which accrues when the. arrested person is released on

bail, Belflower v. Blackshere, 281 P.2d 423, 49 ALR ~

2d 917 (Okla. 1955), and not timely with regard to an -

action based on ‘‘misuse of office and/or abuse of

process’’ since the last act of the City in appellant’s

criminal prosecution was presentation of argument in

the former appeal in the supreme court on February

5, 1963. The Washington court noted that while ap-

pellant’s claim would have been timely with regard

" to an action, for malicious prosecution, appellant spe-

cifically asserted a number of times that his claim was —

not predicated upon any theory of malicious prose-

cution.

_ It is apparent that the Washington court’s affirm-

ance of the trial court’s summary judgment dismiss-

ing appellant’s damage action on the ground that, as

a matter of Washington law, a timely claim for dam-

ages against appellee had not been filed was correct

and that no conceivable federal question is in any way °

raised or presented by such ruling. °

In the state supreme court, and apparently also in

this court, appellant maintains that his right to a jury |

trial was guaranteed under the United States Consti-

tution, Amendment 7, and by the Washington Consti- —

tution, Article I, Section 21, and’ that such right could

not be taken from him by virtue of the entry of a

summary judgment disposing of his action as a matter

of law. . ae

The Washington court suecinctly disposed of such

contention as follows: a

“‘This exact contention was before the United |

States Court of Appeals, 7th circuit, in United

States v. Stangland, 242 F.2d 843 (7th Cir. 1957)

- and was rejected upon the authority of the de-

cision of the United States Supreme Court in

Fidelity « Deposit Co. of Maryland v. United

States, 187 U.S. 315, 47 L. Ed. 194, 23 Sup. Ct.

120 (1902). This court has adopted the same rea-

soning in proceedings where there are no. issues

of facts to be determined by the jury. In re Bran-

don v. Webb, 23 Wn.2d 155, 160 P.2d 529

(1945 ).”’

In the case of United States v. Stangland, supra,

the Court of Appeals for the Seventh Circuit, in

speaking of the right to a jury trial where a sum-

mary judgmient had been entered, states at page 848:

“Tt is urged that the Act encroaches upon

Amendments Seven through Ten. Surely, the

granting of a motion for summary judgment

where there is no genuine issue of fact is not a

denial of the right to trial by jury guaranteed

by the Seventh Amendment. Fidelity « Deposit

o— > —_ «— ae — o—— o——_ 2

en

7

Co. of Maryland v.. United States, 187 U.S. 315,

23 S. Ct. 120, 47 L. Ed 194; Lindsey v. Lewy,

9 Cir., 149 F.2d. 899. . i f

In his J urisdictional iii appellant seems to

be maintaining that Section 1 of the Fourteenth _

Amendment to the United States Constitution guaran-

tees his ‘‘inviolate right’’ to a jury trial as provided .

for in Article I, Section 21 of the Washington State

Constitution. |

Appellant in his Jurisdictional Statement, lape

dix “@” p. XXX states that ‘‘The above portion of

the Fourteenth Amendment makes valid laws of the

State mandatory to each person therein. In its ac-

ceptance of Washington as a State, Congress accepted

Article L Sec. 21, of the State Constitution, and en-

forcible by Sec. 1 of the 14th Amendment.’’ No author-

ity. has been cited to support such novel contention,

and it is submitted that the same is not tenable. |

In the case of Fay v. New Y ork, 332 U.S. 261, 67

S.Ct. 1613, 91 L. Ed. 2043, it was held that due process

and equal protection are not denied to a defendant

in a criminal case tried by a jury taken from a special

panel, and although state constitutional rights were

not specifically discussed the court spelled out the

overall relation of the Fourteenth Amendment with

regard to state court juries as follows:

“The function of this federal eourt under the

Fourteenth Amendment in reference to state

8

juries is not to prescribe. procedures but is es-

sentially to protect the intérity of the trial pro-

cess by whatever method the state sees fit to.

employ .. .”’

CONCLUSION

We respectfully submit that the appellant presents

' no question for the decision of this court; and that

the granting of a summary judgment against appel-

lant is not violative of any of appellant’s Federal (or

State) constitutional rights. Therefore, the appeal -

should be dismissed, or the judgment below affirmed.

Xppellee has not overlooked the fact that appellant’s

Jurisdictional Statement is replete with burdensome,

irrelevant, immaterial, and scandalous matter which is .'

of a particularly repugnant character with regard to

statements made castigating and vilifying the superior

court judge hearing appellant ’s case, the state supreme

court (e.g., J urisdictional Statement pp. 3, 10, 11, 12,

Appendix ‘‘A’’, pp. IV, XI, XII, Appendix “‘B”’, p.

XVII) as well as with regard to various unsupported

and erroneous allegations of criminal and other mis-

conduct on the part of appellee (e.g., Jurisdictional

Statement pp. 10, 22, 26, Appendix “‘A’’, pp. IV, VI,

Ix, Appendix “B” pp. XVIII, XXIX), and ap-

pellee therefore requests that said Jurisdictional

Statement be disregarded and stricken by the court

Ss

9

by reason of the inclusion of such matter ‘therein.

Respectfully submitted, . +

A. L. NEWBOULD

Corporation Counsel

CHARLES R, NELSON

Assistant

Attorneys for Appellee

The City of Seattle

10th Floor

Seattle Municipal Building

Seattle, Washington 98104

J Uniper 3-2338