Mission springs V City of Spokane
Alternatively, a party directly affected by the enacted measure may bring an action against a party charged with enforcing the measure, requesting a judgment declaring the measure unconstitutional. See , e.g. , Acme Fin. Co. , 192 Wash. at 107. Such an action may also take the form of an action against a willing and interested party, appointed by the court as the representative of all interested parties.
RCW 64.40.020 creates a cause of action for damages to obtain relief from acts of an agency which are arbitrary, capricious, unlawful, or exceed lawful authority. A county is an agency for the purpose of this statute. RCW 64.40.010(1); Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 117, 119, 829 P.2d 746 (1992), cert. denied, 506 U.S. 1079, 113 S. Ct. 1044, 122 L. Ed. 2d 353 (1993). “[C]onclusory action taken without regard to the surrounding facts and circumstances is arbitrary and capricious . . . .” Hayes v. City of Seattle, 131 Wn.2d 706, 717-18, 934 P.2d 1179, 943 P.2d 265 (1997).
42 U.S.C. § 1983
 A similar result must follow under 42 U.S.C. § 1983. A prima facie case under 42 U.S.C § 1983 requires the plaintiff to show that a person, acting under color of state law, deprived the plaintiff of a federal constitutional or state-created property right«15» without due process of law.
This situation must be analyzed under well-established due process criteria as distinguished from that associated with taking property without just compensation. The Fourteenth Amendment provides “nor shall any state deprive any person of life, liberty, or property without due process of law.” By reference through the Fourteenth, the Fifth Amendment distinguishes between deprivations of property for want of due process on the one hand and takings without just compensation on the other. See FifthAmendment to the United States Constitution (“. . . nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”). The criteria to establish a taking are “quite different” from that required to establish a deprivation of property for want of due process, and the Supreme Court has instructed there is “no reason” to believe they are the same. Nollan, 483 U.S. at 835 n.3.
The talisman of a taking is government action which forces some private persons alone to shoulder affirmative public burdens, “which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49, 80 S. Ct. 1563, 1569, 4 L. Ed. 2d 1554 (1960); Nollan, 483 U.S. at 835 n.4; see also San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 656, 101 S. Ct. 1287, 1306, 67 L. Ed. 2d 551 (1981) (Brennan, J., dissenting); Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 123, 98 S. Ct. 2646, 2658, 57 L. Ed. 2d 631 (1978). The conduct here does not suggest that appropriative governmental action of which the Fifth Amendment Takings Clause speaks but rather rings of deprivation of property through arbitrary interference with that process lawfully due. Certainly it has no similarity to a so-called “private taking” whereby the government attempts to directly, or even indirectly, appropriate private property for private use. Compare, e.g., Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 104 S. Ct. 2321, 81 L. Ed. 2d 186 (1984)
A cause of action for deprivation of property without due process is ripe immediately because the harm occurs at the time of the violation as does the cause of action. See Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 983, 108 L. Ed. 2d 100 (1990) (“[T]he constitutional violation actionable under § 1983 is complete when the wrongful action is taken.”); Rutherford v. City of Berkeley, 780 P.2d 1444, 1447 (9th Cir. 1986) (substantive due process violated at moment harm occurs); Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 21 n. 11, 829 P.2d 765 (“[A]n action for a violation of substantive due process is ripe immediately . . . because the harm occurs at the time of the violation.”) (citing Bateson, 857 P.2d at 1303), cert. denied, 506 U.S. 1028, 113 S. Ct. 676, 121 L. Ed. 2d 598 (1992); Cox v. City of Lynnwood, 72 Wn. App. 1, 8, 863 P.2d 578 (1993) (substantive due process is violated at the moment harm occurs).
The City Council’s action was the moving force of the constitutional violation, the official policy of the municipality, and the proximate cause of the City Manager’s decision to suspend processing of the permit. Compare Bateson, 857 F.2d at 1303 (those who are “the moving force of constitutional violation” are liable under § 1983). Thus, Mission Springs’ claim is properly cast as a civil rights action for precisely the same reasons liability was imposed under 42 U.S.C. § 1983 against individual council members under nearly identical, if not less aggravated, circumstances in Bateson.
Bateson, 857 F.2d at 1303 (citations omitted). The court went further to note the action of the city council members caused Bateson’s injury because it was “the moving force of the constitutional violation.” City of Oklahoma v. Tuttle, 471 U.S. 808, 819-20, 105 S. Ct. 2427, 2434, 85 L. Ed. 2d 791 (1985), quoting Polk Co. v. Dodson, 454 U.S. 312, 326, 102 S. Ct. 445, 454, 70 L. Ed. 2d 509 (1981). “[T]he requisite causal connection can be established not only by some kind of direct personal participation in the deprivation but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.” Merritt v. Mackey, 827 F.2d 1368, 1371 (9th Cir. 1987), quoting Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). Bateson, 857 F.2d at 1303-04. The United States Court of Appeals rejected the city council members’ claim of absolute or qualified immunity holding: Bateson, 857 F.2d at 1305. Similar facts and identical law mandate the same result. Federal precedent controls our application of federal law. Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 652, 935 P.2d 555 (1997). As in Bateson claims of absolute immunity should be denied and defendants’ liability pursuant to 42 U.S.C. § 1983 established.
Municipal liability for section 1983 purposes attaches when the municipality acts through official policy. Monell v. Department of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). An act undertaken by a municipal legislative body is an act of the municipality. Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986). Spokane acted by and through official policy when its City Council passed the subject motion. Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 118, 119, 124, 829 P.2d 746 (1992), cert. denied, 506 U.S. 1079, 113 S. Ct. 1044, 122 L. Ed. 2d 353 (1993). This act was not only that of the individuals, it was the act of the municipality as well. Municipalities enjoy no qualified immunity from suit. Owen v. City of Independence, 445 U.S. 622, 100 S. Ct. 1398, 63 L. Ed. 2d 673 (1980); Robinson v. City of Seattle, 119 Wn.2d 34, 64, 830 P.2d 318,
Defendants claim no constitutional deprivation occurred because the permit was ultimately issued. Damage questions are normally determined by the fact finder; however, if plaintiffs prove the elements of a section 1983 action, they are entitled to at least nominal damages for deprivation of their constitutional rights. Carey v. Piphus, 435 U.S. 247, 266, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978); Kalmas v. Wagner, 133 Wn.2d 210, 943 P.2d 1369, 1371 (1997). “[T]he amount of damages plaintiffs may be entitled to is a separate issue from whether defendants’ conduct was arbitrary or unreasonable and therefore violative of due process.” Zaintz v. City of Albuquerque, 739 F. Supp. 1462, 1470 n.13 (D.N.M. 1990). See also, e.g., Hirschfeld v. Spanakos, 871 F. Supp. 190, 195 (S.D.N.Y. 1994) (proof of actual damages irrelevant to establish section 1983 liability).