Ventenbergs v. City of Seattle

163 Wash. 2d 92

Opinions

¶1

Since 1961, the Washington Utilities and Transportation Commission (WUTC) has regulated solid waste collection. However, pursuant to statute, the WUTC’s jurisdiction over a solid waste collection company ends when that company contracts directly with a city. In the early 1990s the city of Seattle (City) decided to contract with solid waste handlers directly, thus ending WUTC’s jurisdiction over the companies with which the City contracted. When the City decided to enter into direct contracts, only Rabanco and Waste Management were legally operating (i.e., they were in compliance with existing WUTC regulations) within the City. However, smaller companies, including Kendall Trucking (owned by petitioner Josef Ventenbergs and utilized by petitioner Ronald Haider), were providing collection services for construction, demolition, and land clearing waste (CDL), a specific type of solid waste. The City chose to contract with Rabanco and Waste Management to provide collection of “City’s Waste” and CDL within Seattle. When the City learned that other collection companies were operating illegally, it enacted an ordinance establishing that CDL falls within the definition of “City’s Waste,” and thus could be collected only by Rabanco or Waste Management. We must now decide whether the City’s code provisions restricting CDL collection to Rabanco and Waste Management impermissibly infringe upon the rights of Ventenbergs and Haider. We find that they do not and affirm the Court of Appeals.

Bridge, J

*

I

Facts and Procedural History

¶2 Since 1961, the WUTC has regulated solid waste collection.¹ A company wishing to haul solid waste for profit must either obtain a certificate of necessity and convenience from the WUTC or enter into a contract with a municipality to provide waste collection services for that municipality. RCW 81.77.040 states, in relevant part, that

[n]o solid waste collection company shall hereafter operate for the hauling of solid waste for compensation without first having obtained from the commission a certificate declaring that public convenience and necessity require such operation.

RCW 81.77.020 exempts from this requirement any company operating under a contract with a city or town. It states:

No person, his lessees, receivers, or trustees, shall engage in the business of operating as a solid waste collection company in this state, except in accordance with the provisions of this chapter: PROVIDED, That the provisions of this chapter shall not apply to the operations of any solid waste collection company under a contract of solid waste disposal with any city or town, nor to any city or town which itself undertakes the disposal of solid waste.

¶3 RCW 81.77.040 grandfathered in all currently operating solid waste collection companies, granting them certificates without requiring compliance with the provisions of the chapter. When the WUTC scheme was enacted in 1961,10 solid waste collection companies were operating in the City. Over the course of the next 40 years, due to a series of acquisitions and consolidations, Rabanco and Waste Management gained the exclusive rights to collect commercial waste within Seattle. Only these two companies possessed the requisite certificates of public convenience and necessity from the WUTC. However, due perhaps to a lack of enforcement of the WUTC regulations, numerous other small waste-collection businesses operated within the City at this time.

¶4 Upon the closure of its two landfills in the 1980s (and their declaration as superfund sites), the City decided to confront its solid waste problem by emphasizing recycling and environmental responsibility. To that end, in 1989 the City entered into residential solid waste collection contracts that provided for separate recycling collection and separate yard waste collection. To address the problem of the remaining solid waste, the City sought to enter a long-haul contract with a company that would transport waste to arid eastern Washington or Oregon. Seattle required that the landfills to which the waste would be taken comply with the more strict requirements of landfills in “wet weather” areas, thus providing greater environmental protection. In 1991, the City entered into such a contract with Waste Management, which took all of Seattle’s solid waste to a landfill in Gilliam County, Oregon.

¶5 Then in 1992, the City began considering entering into contracts for commercial solid waste collection for the purposes of (1) reducing rates to commercial generators of solid waste and (2) promoting recycling in the commercial sector. When the United States Supreme Court issued its decision in C&A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 114 S. Ct. 1677, 128 L. Ed. 2d 399 (1994), a third objective arose: ensuring that the City could continue to dispose of its waste at the environmentally sound Gilliam County landfill. In Carbone, the Court held that where a city did not have a municipal system of garbage collection but instead relied on private companies operating under individual contracts with customers, the city could not insist upon the collection companies taking the waste to its own transfer stations. See id. at 386 (finding that by requiring solid waste to be processed at a designated transfer station before leaving the city, the city violated the commerce clause); see also id. at 394 (“State and local governments may not use their regulatory power to favor local enterprise by prohibiting patronage of out-of-state competitors or their facilities.”). Thus, the City was concerned that if Waste Management decided to take the waste to a different disposal site, the City would have no recourse.

¶6 In 2001, after years of negotiations, the City finally entered into contracts with Rabanco and Waste Management for the collection of commercial solid waste within the City. Under the terms of the contracts, each company was responsible for collecting commercial solid waste in its respective zone. Additionally, each company was to exclusively provide for collection of CDL city-wide, without any restriction to a particular zone (thus giving potential customers the option of choosing which company to hire and requiring Rabanco and Waste Management to compete with each other to provide this service). The contracts specified that Rabanco and Waste Management would take commercial waste to specific transfer stations in the City and that the City reserved the right to direct disposal of CDL.

¶7 Under Seattle Municipal Code (SMC) 21.36.030, it is unlawful for anyone to haul “City’s Waste” through the streets of Seattle, although that provision does provide for certain exceptions. One of these exceptions is for “[t]he City’s solid waste contractors.” SMC 21.36.030(C). However, the definition of “City’s Waste” at the time that the City entered into the contracts with Rabanco and Waste Management expressly excluded CDL: “ ‘City’s Waste’ means all residential and nonresidential solid waste generated within the City, excluding Unacceptable Waste, Special Waste, Construction, Demolition and Landclearing Waste, and materials destined for recycling.”² Former SMC 21.36-.012(5) (2001) (emphasis added).

¶8 On May 22, 2002, Rabanco contacted the City to alert it to the fact that its profits had been reduced by approximately 40 percent, due apparently to unlicensed haulers operating in the city. Rabanco requested that the City honor its obligations under the contract and enforce the exclusivity provision. On October 7, 2002, the City enacted ordinance 120947, which removed CDL from the list of types of waste excluded from the definition of “City’s Waste” in SMC 21.36.012.³

¶9 Josef Ventenbergs had started Kendall Trucking, Inc., in 1994. His business provided for collection of CDL, which involved providing containers for the waste and then hauling those filled containers to a transfer station. He attempted to obtain all of the proper licensing but states that he was never aware of the certificate requirement of RCW 81.77.040. Thus, although Ventenbergs maintained a business license from the City, he never had the required WUTC certificate. One of his best customers was Ronald Haider, a contractor who does primarily residential construction. Haider had always used Kendall Trucking to haul his construction waste, as he felt this service more suited his small business needs than did Rabanco and Waste Management.

¶10 On February 26, 2003, Ventenbergs received a letter from Seattle Public Utilities (SPU) stating that under SMC 21.36.030 only Rabanco and Waste Management could collect CDL. In response, on May 13, 2003, Ventenbergs and Haider sued the City, SPU, and Chuck Clarke, director of SPU.⁴ The complaint alleged (1) that SMC 21.36.012(5) and .030 violate the privileges and immunities clause of the Washington Constitution, article I, section 12; and (2) that those provisions of the SMC impaired a contract between Ventenbergs and Haider, in violation of article I, section 23 of the Washington Constitution.⁵ The parties filed cross motions for summary judgment, and on February 23, 2004, the trial court granted summary judgment in favor of the defendants. It found that hauling solid waste within the City is not a fundamental right to which the privileges and immunities clause would pertain, and that because solid waste collection is within a municipality’s police powers, it was entitled to contract with whomever it chose to exercise this power.⁶ The Court of Appeals affirmed, reiterating that a city has broad discretion to take action under its police powers and that solid waste collection is clearly an issue of health and safety that comes within these powers. Ventenbergs v. City of Seattle, noted at 125 Wn. App. 1043, 2005 Wash. App. LEXIS 290 (unpublished). On April 20, 2004, Ventenbergs filed a motion for discretionary review in this court, which we accepted at 158 Wn.2d 1029,152 P.3d 1033 (2007).⁷

II

Analysis

Police Powers

¶11 Article XI, section 11 of the Washington Constitution gives local governments the general power to enact and enforce police and sanitary regulations. RCW 70.95-.020(1) explicitly delegates the primary responsibility for solid waste handling to local governments. Although a city may contract with a private entity for solid waste handling, the municipality remains ultimately responsible for adequate waste management. RCW 70.95.020; Weyerhaeuser v. Pierce County, 124 Wn.2d 26, 41, 873 P.2d 498 (1994) (“[Rjegardless of whether the County deals with a private company, the collection and disposal of solid waste is the County’s responsibility.”). This court has explicitly held that solid waste handling is a governmental function. E.g., Citizens for Clean Air v. City of Spokane, 114 Wn.2d 20, 39, 785 P.2d 447 (1990) (“Disposal of solid waste is a recognized governmental function.”); King County v. City of Algona, 101 Wn.2d 789, 794, 681 P.2d 1281 (1984) (same). In Weyerhaeuser the court expanded upon this concept, explaining that

“[t]he accumulation of garbage and trash within a city is deleterious to public health and safety. The collection and disposal of garbage and trash by the city constitutes a valid exercise of police power and a governmental function which the city may exercise in all reasonable ways to guard the public health. It may elect to collect and dispose of the garbage itself or it may grant exclusive collection and disposal privileges to one or more persons by contract, or it may permit private collectors to make private contracts with private citizens. The gathering of garbage and trash is considered to be a matter which public agencies are authorized to pursue by the best means in their possession to protect the public health . . . .”

Weyerhaeuser, 124 Wn.2d at 40 (emphasis added) (second alteration in original) (quoting Shaw Disposal, Inc. v. City of Auburn, 15 Wn. App. 65, 68, 546 P.2d 1236 (1976)).

¶12 RCW 70.95.030(23) defines solid waste as “all putrescible and nonputrescible solid and semisolid wastes including, but not limited to, garbage, rubbish, ashes, industrial wastes, swill, sewage sludge, demolition and construction wastes, abandoned vehicles or parts thereof, and recyclable materials.”⁸ (Emphasis added.) Therefore, collection and disposal of CDL plainly falls within the ambit of a city’s police powers. However, even though a municipality has broad authority when it acts under these powers, it exceeds this authority if it “ ‘violate [s] any direct or positive mandate of the constitution.’ ” Campbell v. State, 12 Wn.2d 459, 465, 122 P.2d 458 (1942) (quoting Shea v. Olson, 185 Wash. 143, 153, 53 P.2d 615 (1936)). Additionally, the municipality must exercise its police power in a reasonable manner. See Weyerhaeuser, 124 Wn.2d at 40. Thus, we must determine whether the ordinances here are in conflict with constitutional mandates and whether the City exercised its police power in a reasonable way.

A. Article I, section 12

¶13 Ventenbergs argues that by granting contracts exclusively to Rabanco and Waste Management, the City violated article I, section 12 of the Washington Constitution. That provision states:

No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.

¶14 In Grant County Fire Protection District No. 5 v. City of Moses Lake, 150 Wn.2d 791, 812, 83 P.3d 419 (2004), we stressed that “not every statute authorizing a particular class to do or obtain something involves a ‘privilege’ subject to article I, section 12.” Rather, “ ‘privileges and immunities’ ‘pertain alone to those fundamental rights which belong to the citizens of the state by reason of such citizenship.’ ” Id. at 812-13 (emphasis added) (quoting State v. Vance, 29 Wash. 435, 458, 70 P. 34 (1902)). Thus, we must determine whether the right at issue here is fundamental.

¶15 Ventenbergs argues that the “ ‘right to hold specific private employment’ ” is a fundamental right of citizenship.⁹ Pet. for Review at 10 (quoting Plumbers & Steamfitters Union Local 598 v. Wash. Pub. Power Supply Sys., 44 Wn. App. 906, 915, 724 P.2d 1030 (1986)). Ventenbergs misframes the issue. The type of employment that Ventenbergs seeks is not private — it is in a realm belonging to the State and delegated to local governments. See RCW 70.95.020. In Grant County we found that because the power to adjust the boundaries of municipal corporations lies entirely with the legislature, citizens had no fundamental right of citizenship to seek or prevent annexation. Grant County, 150 Wn.2d at 813-14. Similarly, because the power to regulate solid waste collection lies entirely with the legislature and local governments, Ventenbergs has no fundamental right of citizenship to provide this governmental service. Therefore, just as we did in Grant County, we find that there is no fundamental right to provide this governmental service because “[t]he power is entirely that of the legislature, which may delegate to the cities.” Id. at 814.¹⁰

B. Reasonableness

f 16 Although a city has broad discretion when acting under its police powers, it must act in a reasonable way.¹¹ See Weyerhaeuser, 124 Wn.2d at 40. Therefore, although we find that Ventenbergs’s claim fails under article I, section 12 because the right at issue is not fundamental, we must still determine whether the City acted reasonably in deciding to contract only with Rabanco and Waste Management.

¶17 Although Ventenbergs alleges that the City contracted with Rabanco and Waste Management solely to avoid a lawsuit, the City has proffered other reasons for which it chose these two businesses. First, Rabanco and Waste Management were the only two businesses operating legally at the time the City decided to take over regulation of waste collection. Clerk’s Papers (CP) at 414. The City’s decision not to contract with illegally operating businesses is not unreasonable.

¶18 Second, the City was concerned with the health and safety implications of waste management, given its prior experience with its landfills being designated superfund sites. CP at 415. Because Rabanco and Waste Management utilized environmentally sound landfills, the City had a “much higher degree of confidence” that waste would end up in appropriate places. CP at 1611-12. The City sought to dispose of waste in landfills in eastern Washington and eastern Oregon that met the more stringent requirements for landfills built in the western portions of these states, and Rabanco and Waste Management assured the City that it would do so. See CP at 447, 989.

f 19 Finally, the City determined to limit the number of contractors so that it could establish uniform delivery standards, while at the same time promoting competition. CP at 1617. The City had studied the issues that the city of Portland faced when it had numerous service providers and found that having a large number of waste collectors led to “confusion among customers, no uniform standards for collection equipment or containers, [and] no uniform standard for the services being provided.” CP at 1616-17. At the same time, the City decided to contract with more than one company in order to promote competition and keep rates low. CP at 1617. We find that all of these reasons proffered by the City indicate that it was reasonable under its police powers for the City to have chosen to contract with Rabanco and Waste Management, and find that the City did not improperly limit collection of CDL to these two businesses.

Right To Alienate Property

¶20 Haider argues that the City infringed upon his right to freely alienate his property when it required him to dispose of CDL with only Rabanco or Waste Management. See Opening Br. of Appellant at 44-45. Haider cites Manufactured Housing Communities of Washington v. State, 142 Wn.2d 347, 364, 13 P.3d 183 (2000), in which we stated that “ ‘[p]roperty in a thing consists not merely in its ownership and possession, but in the unrestricted right of use, enjoyment and disposal.’ ” (Emphasis and internal quotation marks omitted) (quoting Ackerman v. Port of Seattle, 55 Wn.2d 400, 409, 348 P.2d 664 (1960)).

¶21 Haider points to no case, however, in which we have found a right to freely dispose of solid waste. To the contrary, “ ‘[t]he gathering of garbage and trash is considered to be a matter which public agencies are authorized to pursue by the best means in their possession to protect the public health.’ ” Shaw Disposal, 15 Wn. App. at 68 (quoting Davis v. City of Santa Ana, 108 Cal. App. 2d 669, 676, 239 P.2d 656 (1952)). Furthermore, nothing in the statutes or municipal code at issue prevents Haider from hauling his own construction debris — he is required to employ the services of Rabanco or Waste Management only if he chooses not to haul the debris himself. Therefore, we find that the City did not infringe upon his right to freely alienate his property.

Compliance with Bidding Procedures

¶22 Ventenbergs next claims that the City violated the provisions of RCW 35.21.156 by failing to comply with the bidding process set forth in that statute. Opening Br. of Appellant at 39. The City responds that that provision applies only to waste facilities and thus it was not required to follow the procedural mandates of that provision. Am. Br. of Resp’t Seattle at 39-40.

¶23 RCW 35.21.156(1) sets forth the procedures for a municipality to follow when contracting with vendors for services for “the design, construction, or operation of, or other service related to, the systems, plants, sites, or other facilities for solid waste handling.” (Emphasis added.) Thus, we must determine whether this provision applies to the City’s contracts with Rabanco and Waste Management.

¶24 To determine the meaning of RCW 35.21.156, we look to the surrounding provisions. RCW 35.21.120 states, in relevant part, that “[a] city or town . . . may award contracts for any service related to solid waste handling[¹²] including contracts entered into under RCW 35.21.152.” (Emphasis added.) RCW 35.21.152 in turn states that

[a] city or town may enter into agreements with public or private parties to: (1) Construct, lease, purchase, acquire, manage, maintain, utilize, or operate publicly or privately owned or operated solid waste handling systems, plants, sites, or other facilities; (2) establish rates and charges for those systems, plants, sites, or other facilities; (3) designate particular publicly or privately owned or operated systems, plants, sites, or other facilities as disposal sites; and (4) sell the materials or products of those systems, plants, or other facilities.

(Emphasis added.) By referring specifically to “systems, plants, sites, or other facilities,” the statute expressly reaches a subset of services related to solid waste handling, not “any service” as referenced by RCW 35.21.120. The fact that it refers to these “systems, plants, sites, or other facilities” as “disposal sites” that can produce “materials or products” indicates that it is not referencing collection.¹³ Thus, when this same “systems, plants, sites, or other facilities” language is used in RCW 35.21.156, it becomes apparent that that provision does not mandate that a city follow the bidding procedures to contract for all services related to solid waste handling, but rather that it applies only to that particular subset. Because the City’s contracts with Rabanco and Waste Management are not for these services, the provisions of RCW 35.21.156 do not apply to them.

City’s Authority

¶25 Ventenbergs argues that “a city’s monopolization of CDL hauling exceeds the statutory authority granted to municipalities by the legislature.” Pet. for Review at 17 n.5. However, as discussed above, the legislature has expressly delegated the authority for solid waste management to local government. See RCW 70.95.020. We have explained in the past that a city may exercise its police power over solid waste management “ ‘in all reasonable ways to guard the public health. It may elect to collect and dispose of the garbage itself or it may grant exclusive collection and disposal privileges to one or more persons by contract.’ ” Weyerhaeuser, 124 Wn.2d at 40 (emphasis added) (quoting Shaw Disposal, 15 Wn. App. at 68). Additionally, we have stated that “Ordinances conferring the exclusive right to collect garbage and refuse substances upon some department of the city government, or upon a contractor with the city, have almost universally been sustained.” Smith v. City of Spokane, 55 Wash. 219, 221, 104 P. 249 (1909) (emphasis added).¹⁴

¶26 As discussed above, it was reasonable for the City to contract with only Rabanco and Waste Management. Its decision to contract with these companies fell within the authority to manage solid waste as delegated to it by the legislature. We therefore find that the City did not exceed the authority given to it by the legislature when it chose to contract solely with these two companies.

Sanctions

¶27 Finally, Ventenbergs argues that the Court of Appeals erred when it refused to impose sanctions on the City for appending “unidentified, unauthenticated materials it called ‘legislative history.’ ” Pet. for Review at 19. RAP 10.7 states that a court will “ordinarily” order sanctions for submitting an improper brief; however, the rule does not require the court to do so. We find that the Court of Appeals acted within its discretion when it refused sanctions here.

Ill

Conclusion

¶28 The Ninth Circuit Court of Appeals has stated that “[o]ne could hardly imagine an area of regulation that has been considered to be more intrinsically local in nature than collection of garbage and refuse, upon which may rest the health, safety, and aesthetic well-being of the community.” AGG Enters, v. Washington County, 281 F.3d 1324, 1328 (9th Cir. 2002). We agree. The City acted reasonably under its police powers and the authority delegated to it by the legislature. In deciding to contract with Rabanco and Waste Management, the City did not impermissibly infringe upon the rights of the petitioners. We therefore affirm the Court of Appeals.

C. Johnson, Madsen, Owens, and Fairhurst, JJ., concur.

Justice Bobbe J. Bridge is serving as a justice pro tempore of the Supreme Court pursuant to Washington Constitution article IV, section 2(a).

1 “Solid waste” is defined as “all putrescible and nonputrescible solid and semisolid wastes including, but not limited to, garbage, rubbish, ashes, industrial wastes, swill, sewage sludge, demolition and construction wastes, abandoned vehicles or parts thereof, and recyclable materials.” RCW 70.95.030(23) (emphasis added).

2 We note that although the Seattle Municipal Code did not prohibit the hauling of CDL at that time, state law nonetheless forbade this activity by persons who did not possess the required WUTC certificate. See RCW 81.77.040 (prohibiting hauling of solid waste for compensation); RCW 70.95.030(23) (including CDL within its definition of “solid waste”). Thus, the dissent is mistaken when it asserts that the collection of CDL was a “lawful enterprise” before the ordinance was enacted. See dissent at 119.

3 Again, the dissent misconstrues the facts when it states that the City ‘legislated all competitors to Rabanco and Waste Management out of business.” Dissent at 110. In fact, state law proscribed the hauling of CDL without a WUTC certificate, which Ventenbergs did not possess. In enacting ordinance 120947, the City merely ensured that the SMC was consistent with state law.

4 Although the original complaint named only the City, Ventenbergs subsequently amended the complaint to add Rabanco and Waste Management as defendants.

5 Ventenbergs did not raise the impairment of contract issue in his petition for review in this court, and thus we do not address it.

6 The court also found that there was no valid contract between Ventenbergs and Haider, and thus this claim failed as well.

7 We stayed the decision to grant review pending the outcome of Amunrud v. Board of Appeals, 158 Wn.2d 208, 143 P.3d 571 (2006), which we decided on September 21, 2006.

8 The dissent states that there may be a distinction between construction debris and waste, and admits that collection of the latter might be proscribable. Dissent at 119. Should the legislature decide to remove CDL from the definition of solid waste, then perhaps we could find such a distinction. Until then, however, it is clear from the plain language of the statute that the legislature intended that CDL be treated the same as other forms of waste.

9 The dissent argues that we “mischaracterize[ ]” the right at issue here because the right is actually “ ‘[t]he right to hold specific private employment free from unreasonable governmental interference ....’” Dissent at 125 (first alteration in original) (quoting Duranceau v. City of Tacoma, 27 Wn. App. 777, 780, 620 P.2d 533 (1980)). The dissent focuses on the second clause of the sentence and ignores the first: the government may not unreasonably interfere with private employment. For the reasons stated below, the type of employment that Ventenbergs sought was not private. Therefore, it does not implicate the privileges and immunities clause. However, even under our police powers analysis, we must determine whether the government acted reasonably. See infra at 104.

10 Because we find that a general right to employment is not at issue here, we do not discuss Ventenbergs’s argument that even though we have held that the right to employment is not fundamental under the Fourteenth Amendment, see Amunrud, 158 Wn.2d at 222, we should nonetheless find that this right is fundamental for purposes of our privileges and immunities clause.

11 Because a government must exercise its police powers in a reasonable manner, “exclud[ing] an outspoken political opponent from solid waste collection” or restricting collection “to those of a particular religious affiliation,” see dissent at 128, would clearly be prohibited. Neither political nor religious distinctions are present here.

12 “Solid waste handling” refers to the “management, storage, collection, transportation, treatment, utilization, processing, and final disposal of solid wastes ____” RCW 70.95.030(24).

13 RCW 35.21.120 contains further evidence of the legislature’s intent to distinguish general “solid waste handling” from specific “solid waste handling systems, plants, sites, or other facilities”:

Contracts for solid waste handling may provide that a city or town provide for a minimum periodic fee or other method of compensation in consideration of the operational availability of a solid waste handling system, plant, site, or other facility at a specified minimum level, without regard to the ownership of the system, plant, site, or other facility, or the amount of solid waste actually handled during all or any part of the contract period. When a minimum level of solid waste is specified in a contract for solid waste handling, there shall be a specific allocation of financial responsibility in the event the amount of solid waste handled falls below the minimum level provided in the contract.

(Emphasis added.)

14 The dissent states that our decision today “embraces a devil the framers banished with article I, section 12.” Dissent at 133. However, one of the justices in the (unanimous) majority of the Smith decision was Ralph O. Dunbar, a member of the Washington constitutional convention and signatory to the constitution. Wash. Const. Certificate (Aug. 22, 1889); Smith, 55 Wash, at 222.