          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION ONE

 CITY OF SEATTLE,                             No. 78230-4-I

            Petitioner/Cross-Respondent,
                                              ORDER DENYING MOTION FOR
                 v.                           RECONSIDERATION, WITHDRAWING
                                              OPINION, AND SUBSTITUTING
 STEVEN GREGORY LONG,                         OPINION

            Respondent/Cross-Petitioner.


          Respondent/Cross-Petitioner Steven Long filed a motion for

reconsideration of the opinion filed on May 4, 2020. Petitioner/Cross-Respondent

City of Seattle filed a response. The court has determined that the motion should

be denied. However, the opinion should be withdrawn, and a substitute opinion

filed. Now, therefore, it is hereby

          ORDERED that the motion for reconsideration is denied; and it is further

          ORDERED that the opinion filed on May 4, 2020, is withdrawn; and it is

further

          ORDERED that a substitute opinion shall be filed.
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 CITY OF SEATTLE,
                                            No. 78230-4-I
         Petitioner/Cross-Respondent,
                                            DIVISION ONE
               v.

 STEVEN GREGORY LONG,                       PUBLISHED OPINION

         Respondent/Cross-Petitioner.


       CHUN, J. — The Washington State Constitution mandates that the

legislature protect portions of homesteads from forced sale. Accordingly, over a

century ago, Washington passed its first homestead law. And over 25 years ago,

our state legislature expanded homestead protection to “personal property that

the owner uses as a residence,” including automobiles. The law requires

Washington courts to construe the “Homestead Act” (Act), chapter 6.13 RCW,

broadly due to “the sanctity with which the legislature has attempted to surround

and protect homestead rights.” In re Marriage of Baker, 149 Wn. App. 208, 212,

202 P.3d 983 (2009).

       Here, the city of Seattle (City) properly concedes that Steven Long’s truck,

which constituted his principal residence, may constitute a homestead. State

and Seattle laws, however, allow for the forced sale of a vehicle after

impoundment, regardless of whether such personal property constitutes a

homestead. This case concerns whether the City violated Long’s homestead
No. 78230-4-I/2


rights when it towed his truck and withheld it under the threat of forced sale

unless he paid the impoundment costs or signed a payment plan.

       Long concedes that the City could have ticketed him, towed his truck, and

required him to pay for towing and storage costs and an administrative fee

without violating his rights. The problem, Long argues, is that the City withheld

the truck under the threat of a forced sale if he did not sign a payment plan. We

agree. As noted above, the law requires us to construe the Homestead Act

broadly in favor of the homeowner, so that it may achieve its purpose of

protecting homes. In doing so, we determine that the Act protected Long’s truck

as a homestead and the City violated the Act by withholding the truck subject to

auction unless he paid the impoundment costs or agreed to a payment plan. We

therefore affirm the superior court’s decision to void the payment plan.

       This case also presents the following constitutional issues: first, whether

impounding a vehicle that serves as a home and requiring the registered owner

to pay the associated costs constitutes excessive punishment under the federal

constitution’s Eighth Amendment; second, whether a vehicle owner may assert

the state-created danger doctrine under the due process clause to obtain relief

from impoundment; and third, whether Long may raise for the first time on appeal

that towing a vehicle that serves as a home violates the private affairs guaranty

of our state constitution.

       We conclude these additional constitutional arguments fail. As for the

Eighth Amendment, assuming without deciding that the impoundment and

associated costs constitute penalties, they are not excessive because they


                                         2
No. 78230-4-I/3


directly and proportionally relate to the offense of illegal parking and are the

exact penalties the Seattle City Council authorized. We also determine that Long

cannot assert the state-created danger doctrine to seek relief from the

impoundment, and he cannot raise his claim under the private affairs guaranty for

the first time on appeal.

       Our decision does not affect the City’s authority to tow and impound an

illegally parked vehicle.1 Nor does it prohibit the City from charging a vehicle

owner for costs associated with the towing and impounding of a vehicle. But if

that vehicle serves as the owner’s principal residence, the City may not withhold

the vehicle from the owner under the threat of forced sale.

       We affirm in part and reverse in part.

                                   I. BACKGROUND

       King County (County) currently faces a homelessness2 crisis. In January

2019, researchers identified 11,199 people experiencing homelessness within

the County.3 Of these individuals, 2,147 lived in a vehicle.4 These figures


       1
          We note here that recently, the City passed Ordinance No. 126042 to permit the
creation of 40 transitional encampments as an interim use where people living in their
cars may camp indefinitely. Seattle Ordinance 126042, § 1 (Feb. 28, 2020).
        2
          For purposes of this opinion, we use the definition of “homeless” found in the
Count Us In report, which, “[u]nder the Category 1 definition of homelessness in the
HEARTH Act, includes individuals and families living in a supervised publicly or privately
operated shelter designated to provide temporary living arrangements, or with a primary
nighttime residence that is a public or private place not designed for or ordinarily used as
a regular sleeping accommodation for human beings, including a car, park, abandoned
building, bus or train station, airport, or camping ground.” APPLIED SURVEY RESEARCH &
ALL HOME, COUNT US IN 116 (2019), http://allhomekc.org/wp-content/uploads/2019/09/
KING-9.5-v2.pdf [https://perma.cc/LJL2-WNJL].
        3
          Homelessness in King County 2019, ALL HOME, http://allhomekc.org/wp-
content/uploads/2019/05/All-Homes-Infographic-V04.pdf [https://perma.cc/5LQX-ZCQE].
        4
          Homelessness in King County 2019, supra.


                                             3
No. 78230-4-I/4


apparently underestimate the number of people experiencing homelessness in

the County.5

   A. Seattle’s 72-hour Rule

          The Seattle Municipal Code (SMC) generally prohibits parking a vehicle in

the same location on City property for more than 72 hours. SMC 11.72.440(B)

(72-hour Rule). If a vehicle is parked in violation of the 72-hour Rule, it is

“subject to impound as provided for in Chapter 11.30 SMC.” SMC 11.72.440(E).

SMC 11.30.030 incorporates applicable provisions of chapter 46.55 RCW by

reference. Under RCW 46.55.140(1), “[a] registered tow truck operator who has

a valid and signed impoundment authorization has a lien upon the impounded

vehicle for services provided in the towing and storage of the vehicle.” If the

registered owner does not claim their vehicle or contest the impoundment within

15 days of the tow, the tow truck operator “shall conduct a sale of the vehicle at

public auction” and use the proceeds to satisfy its lien. RCW 46.55.130(1),

(2)(h).

          If a person seeks to redeem an impounded vehicle without contesting the

impoundment, then they must pay the towing contractor for the removal, towing,

and storage costs of the impoundment plus an administrative fee.

SMC 11.30.120(B). If a person chooses to contest the impoundment, then they

may request a hearing before the municipal court. SMC 11.30.160. If the

municipal court determines the City properly impounded the vehicle, then the

vehicle “shall be released only after payment to the City of any fines imposed on

          5
              APPLIED SURVEY RESEARCH & ALL HOME, supra, at 5.


                                             4
No. 78230-4-I/5


any underlying traffic or parking infraction and satisfaction of any other applicable

requirements of SMC 11.30.120(B) and payment of the costs of impoundment

and administrative fee to the towing company.” SMC 11.30.160(B). The

municipal court also may allow the owner to make payments for the

impoundment costs and administrative fee over time if there is extreme financial

need and effective guarantee of payment. SMC 11.30.160(B). In that case, the

City pays the impoundment costs to the towing company. SMC 11.30.160(B).

   B. Steven Long

       Long, a 60-year-old member of the Confederated Salish and Kootenai

Tribes of Flathead Nation, was evicted from his apartment in 2014. Since then,

he has lived in his truck, a 2000 GMC 2500 Sierra valued at about $4,000. Long

works as a general laborer and keeps work tools, as well as personal items, in

his truck. Long’s work includes construction, painting, light plumbing, mechanics,

and other labor.

       In June 2016, while driving his truck, Long heard “grinding noises” coming

from the gears. Long pulled into a store parking lot and stayed there for a few

weeks with the business’s permission. On July 5, 2016, Long moved his truck to

an unused gravel lot owned by the City. Long stated that he parked at the lot

because “it is secluded, there were other individuals living in vehicles, and the

public did not appear to use it regularly.” The lot was also near a day center for

the homeless.

       Three months later, on October 5, 2016, police were dispatched to an

area near the gravel lot for an unrelated complaint. After the police dealt with the


                                          5
No. 78230-4-I/6


complainant, another individual walked up and reported an incident involving

Long. The officers approached Long and told him that, under city ordinance, his

truck could not remain parked on city property for more than 72 hours. Long

states that he told the officers the truck was inoperable and that he needed a part

to repair it. Long also claims he told the officers that the truck was his home.

The officers called a parking enforcement officer (PEO) to “tag” the truck. A PEO

arrived and posted a 72-hour notice, which stated that the vehicle would be

impounded it if he did not move it at least one city block within 72 hours, on

Long’s truck.

       Long did not move his truck because he did not believe it was running well

enough to drive. On October 12, 2016, Lincoln Towing, which contracts with the

City to perform impound services, towed Long’s truck while he was away

working. Long learned of the impoundment when he returned to the lot around

midnight. He was distressed because “it was a cold night and the beginning of

an intense wind and rain storm.” The truck contained his “winter jacket, clothes,

sleeping bag, blankets, tools, tool boxes, air mattress, cooking stove and

utensils, change for the bus, rubbing alcohol for [his] joints, laptop, and all [his]

personal items for bathing and cleaning [him]self.” After unsuccessfully trying to

create a shelter out of a tarp, Long went to the nearby day center. Because the

center did not have any available beds or mats, Long sat in a chair until the

morning. Without his truck, Long began to live outside.

       On October 18, 2016, Long obtained access to his truck at the Lincoln

Towing lot and removed some personal items and bedding that he could carry.


                                           6
No. 78230-4-I/7


Long, however, could not afford to pay the costs to redeem his truck.

      Long requested a hearing on the impoundment; the hearing occurred

before a magistrate at Seattle Municipal Court on November 2, 2016. Long told

the court that the truck was his home. But because Long did not argue that he

had parked his truck legally, the magistrate determined that the ticket and

impoundment were proper. The magistrate waived the $44 ticket, reduced the

impoundment charges from $946.61 to $547.12, and added a $10 administrative

fee. The magistrate set up a payment plan that required Long to pay $50 per

month. Long felt he “had no real choice but to agree” to the payment plan

because he needed his truck and did not want the City to auction it.

      After the hearing, Long retrieved his truck from the impound lot. There, he

learned that if he had not retrieved the vehicle, Lincoln Towing would have sold it

at auction three days later—on November 5, 2016. Long drove his truck to a

friend’s property for storage. As of March 13, 2017, Long continued to

experience homelessness, worked in Seattle, and lived outside.

      Long appealed the magistrate’s decision to a municipal court judge. On

March 13, 2017, after discovery, Long moved for summary judgment. He argued

that the citation and impoundment of his vehicle and the associated fines, fees,

and penalties violated (1) the excessive fines clause of the Eighth Amendment,

(2) the due process clause of Fourteenth Amendment to the United States

Constitution, and (3) the homestead protections under the Washington

Constitution and the Homestead Act.




                                         7
No. 78230-4-I/8


       On May 10, 2017, the municipal court denied Long’s motion. Long filed a

notice of RALJ appeal to King County Superior Court on June 8, 2017.6

       On March 2, 2018, the superior court affirmed in part and reversed in part.

The court affirmed that the impoundment itself did not violate either the Eighth

Amendment or Long’s substantive due process rights. It reversed in part,

however, because it determined that the impoundment fees were excessive in

violation of the Eighth Amendment and that attaching Long’s truck as security for

the impoundment fees violated the Homestead Act. The court also voided the

payment plan and ordered the City to refund previous payments.

       Both Long and the City filed motions for discretionary review, which a

commissioner of this court granted.

                                    II. ANALYSIS

       A trial court properly grants summary judgment in the absence of a

genuine issue of material fact. CR 56(c); Billings v. Town of Steilacoom, 2 Wn.

App. 2d 1, 14, 408 P.3d 1123 (2017). In reviewing a summary judgment ruling,

we “engage[] in the same inquiry as the trial court, with questions of law reviewed

de novo and the facts and all reasonable inferences from the facts viewed in the

light most favorable to the nonmoving party.” Billings, 2 Wn. App. 2d at 14. The

parties do not appear to dispute any of the facts material to our analysis.

   A. The Homestead Act

       The City argues that while a truck may qualify for homestead protection,


       6
        On June 28, 2017, the City orally moved for a final judgment before the
municipal court, which the court granted.


                                           8
No. 78230-4-I/9


the Homestead Act does not apply here. Long contends that “[t]he City violated

the Homestead Act by attaching [his] residence as security for his impound debts

and by threatening to sell his home for those debts.” We agree in part with Long

and conclude that the City violated the Homestead Act.

      1. The Origins of Washington’s Homestead Act

      States began passing homestead laws in the 19th century. Paul

Goodman, The Emergence of Homestead Exemption in the United States:

Accommodation and Resistance to the Market Revolution, 1840-1880, 80 J. AM.

HIST. 470, 470 (1993). Such laws aim to protect a debtor’s dwelling from

execution and forced sale. W ASH. STATE BAR ASS’N, W ASHINGTON REAL

PROPERTY DESKBOOK SERIES: INTERESTS IN REAL PROPERTY AND DUTIES OF THIRD

PARTIES § 10.2(2) (4th ed. 2015). Texas was the first state to pass a homestead

exemption law in 1839, and 18 more states passed homestead laws between

1848 and 1852. Goodman, supra, at 470. These laws “aimed at providing a

measure of security in an increasingly insecure, volatile economy” that

accompanied the development of capitalism in the United States. Goodman,

supra, at 470. Before these laws, the United States experienced financial

“panic[s]” that caused thousands to suffer from unemployment and bankruptcy

and to lose their homes. Goodman, supra, at 471. In response, states passed

homestead exemption laws that “promised to shield at least homes so that

families no longer need worry that the breadwinner’s bad luck or incompetence

would plunge an entire household into destitution.” Goodman, supra, at 471.




                                        9
No. 78230-4-I/10


          The Washington State Constitution mandates that “[t]he legislature shall

protect by law from forced sale a certain portion of the homestead and other

property of all heads of families.” CONST. art. XIX, § 1. Washington passed its

first homestead law in 1895 under this constitutional mandate.7 LAWS OF 1895,

ch. 64, § 1; REM. REV. STAT. § 528 (Supp. 1945).

              As was true with the first homestead laws in the nation, the purpose of

Washington’s Homestead Act is to place qualifying homes, or portions of them,

beyond the reach of financial misfortune and to promote the stability and welfare

of the state. Clark v. Davis, 37 Wn.2d 850, 852, 226 P.2d 904 (1951).

          The law requires us to liberally construe the Homestead Act in favor of the

debtor so it may achieve its purpose of protecting homes. In re Dependency of

Schermer, 161 Wn.2d 927, 953, 169 P.3d 452 (2007) (“The [Homestead Act] is

favored in law, and courts construe it liberally so it may achieve its purpose of

protecting family homes.”); Baker, 149 Wn. App. at 212 (broadly interpreting the

Homestead Act due to “the public policy involved in [Washington’s] homestead

statutes” and “the sanctity with which the legislature has attempted to surround

and protect homestead rights”); In re Tr.’s Sale of Real Property of Upton, 102

Wn. App. 220, 223, 6 P.3d 1231 (2000) (“‘homestead and exemption laws are

favored in law and are to be liberally construed’” (quoting In re Tr.’s Sale of Real

Property of Sweet, 88 Wn. App. 199, 204, 944 P.2d 414 (1997))); Burch v.

Monroe, 67 Wn. App. 61, 64, 834 P.2d 33 (1992) (noting that homestead laws

          7
              Washington Territory passed its first homestead law in 1860. Goodman, supra
at 472.



                                              10
No. 78230-4-I/11


are enacted “‘in the interest of humanity’” because “[t]heir intent is to ensure

shelter for families” (quoting Macumber v. Shafer, 96 Wn.2d 568, 570, 637 P.2d

645 (1981))); Webster v. Rodrick, 64 Wn.2d 814, 816, 394 P.2d 689 (1964)

(stating that homestead statutes “do not protect the rights of creditors; they are in

derogation of such rights” (citing First Nat’l Bank of Everett v. Tiffany, 40 Wn.2d

193, 242 P.2d 169 (1952))); Downey v. Wilber, 117 Wash. 660, 661, 202 P. 256

(1921) (noting that the purpose of the Homestead Act “is to prevent a forced sale

of the home; in other words, to secure the claimant and [their] family in the

possession of [their] home”).

       Washington’s Homestead Act defines a “homestead” as “real or personal

property that the owner uses as a residence.” RCW 6.13.010(1). While mobile

homes were the first form of personal property covered by the Act, the legislature

amended the Act in 1993 to cover “personal property that the owner uses as a

residence” so as to extend homestead protection to cars and vans. FINAL B. REP.

ON SUBSTITUTE   S.B. 5068, 53d Leg., Reg. Sess. (Wash. 1993) (“[b]ecause some

Washington citizens reside on their boats or in their cars or vans, it has been

recommended that the homestead exemption’s scope be expanded to include

any personal or real property that the owner uses as a residence”). “Once the

owner occupies the property as a principal residence, a homestead exception is

established automatically without a declaration.” Nw. Cascade, Inc. v. Unique

Constr., Inc., 187 Wn. App. 685, 697-98, 351 P.3d 172 (2015). A “homestead is

exempt from attachment and from execution or forced sale for the debts of the

owner up to the amount specified in RCW 6.13.030.” RCW 6.13.070(1).


                                         11
No. 78230-4-I/12


        2. Declaration of homestead

        The City agrees that a truck may qualify for homestead protection. But it

asserts that under RCW 6.13.040, Long needed to file a declaration of

homestead for the Act to protect his truck. Long contends that occupying his

vehicle as his principal home rendered it automatically protected. We agree with

Long.

        We review de novo issues of statutory interpretation. Nw. Cascade, 187

Wn. App. at 696. We “‘look first to the plain meaning of the statutory language,

and . . . interpret a statute to give effect to all language, so as to render no

portion meaningless or superfluous.’” Benson v. State, 4 Wn. App. 2d 21, 26,

419 P.3d 484 (2018) (quoting Rivard v. State, 168 Wn.2d 775, 783, 231 P.3d 186

(2010)). Our fundamental objective when construing a statute is to determine

and carry out the legislature’s intent. King County v. King County Water Dist.

No. 20, 194 Wn.2d 830, 853, 453 P.3d 681 (2019).

        RCW 6.13.040(1) lists circumstances under which the homestead

exemption automatically protects property, and circumstances that require a

declaration of homestead for the exemption to apply:
        Property described in RCW 6.13.010 constitutes a homestead and is
        automatically protected by the exemption described in RCW
        6.13.070 from and after the time the real or personal property is
        occupied as a principal residence by the owner or, if the homestead
        is unimproved or improved land that is not yet occupied as a
        homestead, from and after the declaration or declarations required
        by the following subsections are filed for record or, if the homestead
        is a mobile home not yet occupied as a homestead and located on
        land not owned by the owner of the mobile home, from and after
        delivery of a declaration as prescribed in RCW 6.15.060(3)(c) or, if




                                          12
No. 78230-4-I/13


       the homestead is any other personal property, from and after the
       delivery of a declaration as prescribed in RCW 6.15.060(3)(d).

(Emphasis added.)

       The opening clause of the subsection provides, “Property described in

RCW 6.13.010 constitutes a homestead and is automatically protected . . . from

and after the time the real or personal property is occupied as a principal

residence by the owner.” RCW 6.13.010(1) defines a “homestead” as “real or

personal property that the owner uses as a residence.” Thus, because Long

occupied his truck as a principal residence, the homestead exemption

automatically applies.

       The City points to the final clause in RCW 6.13.040(1) and asserts that the

language requiring a declaration for “any other personal property” applies to

Long’s truck. But such a reading would render meaningless the terms “any

other.” See Benson, 4 Wn. App. 2d at 26. The final clause refers to personal

property other than the personal property listed in the opening clause (i.e.,

personal property described in RCW 6.13.010). Thus, the City’s reading would

have the final clause contradict the opening clause.8

       8
          The City’s interpretation also appears inconsistent with case law providing that
property occupied as a residence is automatically protected as a homestead without a
declaration. See Schermer, 161 Wn.2d at 953 (“A home automatically becomes a
homestead when the owners use the property as their primary residence”); Fed.
Intermediate Credit Bank of Spokane v. O/S Sablefish, 111 Wn.2d 219, 229, 758 P.2d
494 (1988) (“The Legislature substantially rewrote the homestead act in 1981. The
major purpose of this effort was to make the homestead classification automatic once
the property is occupied as a permanent residence.”); Felton v. Citizens Fed. Sav. &
Loan Ass’n of Seattle, 101 Wn.2d 416, 420, 679 P.2d 928 (1984) (“possession was (and
is) the key to the right to homestead”); Viewcrest Condo. Ass’n v. Robertson, 197 Wn.
App. 334, 340, 387 P.3d 1147 (2016) (“Once property is occupied as a primary
residence, a homestead is automatically created.”); Nw. Cascade, 187 Wn. App. at 697-
98 (“Once the owner occupies the property as a principal residence, a homestead
exception is established automatically without a declaration.”); In re Wilson, 341 B.R. 21,


                                            13
No. 78230-4-I/14


       The City supports its interpretation of RCW 6.13.040(1) by citing the

declaration requirements for “other personal property” set forth in

RCW 6.15.060(3)(d). In a declaration for “other personal property” the debtor

must state that they reside on the personal property as a homestead.

RCW 6.15.060(3)(d). The City claims that if “other personal property” from

RCW 6.13.040(1) did not refer to occupied personal property, then

RCW 6.15.060(3)(d) would not require the debtor to state that they reside on the

personal property.

       The two statutes do appear inconsistent. While RCW 6.13.040(1)

provides that occupied personal property is automatically protected,

RCW 6.15.060(3)(d) implies that a declaration is required for the Act to protect

such property. Thus, the statute is susceptible to more than one reasonable

meaning. Statutes that can be reasonably interpreted in two or more ways are

ambiguous. Payseno v. Kitsap County, 186 Wn. App. 465, 469, 346 P.3d 784

(2015). When statutes are ambiguous, it is appropriate for courts “to resort to

aids to construction, including legislative history.” King County, 194 Wn.2d at

853. Ultimately, we must harmonize related statutory provisions to carry out a

consistent scheme that maintains the statute’s integrity. King County, 194 Wn.2d

at 853. And again, with respect to the Homestead Act, the law requires us to

liberally construe the Act in favor of the homesteader. Schermer, 161 Wn.2d

at 953.


25-26 (9th Cir. 2006) (stating that an automatic homestead exemption is created for real
or personal property from and after the time the property is occupied as a principal
residence by the owner).


                                           14
No. 78230-4-I/15


       When a statute is ambiguous, courts “‘rely on statutory construction,

legislative history, and relevant case law to determine legislative intent.’”

Payseno, 186 Wn. App. at 469 (quoting State v. Rice, 180 Wn. App. 308, 313,

320 P.3d 723 (2014)). The final bill report on the 1993 amendment states that

the legislature sought to expand the scope of the exemption “to include any

personal or real property” because some citizens resided on their boats or in their

cars or vans. FINAL B. REP. ON SUBSTITUTE S.B. 5068 (emphasis added). The

report’s summary also provides that “[t]he definition of homestead is expanded to

include any real or personal property that the owner uses as a residence.” FINAL

B. REP. ON SUBSTITUTE S.B. 5068 (emphasis added). This history shows the

legislature intended to for the Act to automatically protect people residing in their

vehicles. Moreover, this broader interpretation of the types of property

automatically protected under the Act maintains the statute’s integrity by effecting

its overall purpose of protecting homes.

       The undisputed evidence shows that Long lived in his truck when the City

impounded it. Because the legislative history shows an intention for broad

protections of personal property and because we must liberally construe the Act,

we interpret the Homestead Act not to require a declaration for personal property

that the owner is occupying as a principal residence. Thus, the truck constituted

a homestead and the homestead exemption applied.

       3. Attachment

       The City claims that the lien resulting from the impoundment of Long’s

truck did not violate the Homestead Act because the payment plan, which does


                                          15
No. 78230-4-I/16


not encumber Long’s truck, extinguished it. Long argues a lien was automatically

placed on his truck upon it being towed, and this constituted an attachment that

violated the Homestead Act. We determine that the lien never attached to Long’s

truck.

         As stated above, under Washington law, “[a] registered tow truck operator

who has a valid and signed impoundment authorization has a lien upon the

impounded vehicle for services provided in the towing and storage of the

vehicle.” RCW 46.55.140(1). For a towing company to release an impounded

vehicle, SMC 11.30.120(B) requires the registered owner to pay all the

accumulated impound debt to the towing company. In cases of extreme financial

hardship, however, a magistrate may allow the registered owner to make

payments over time if there is an effective guarantee of payment.

SMC 11.30.160(B). If a magistrate sets up such a payment plan, the City pays

the costs of impoundment to the towing company. SMC 11.30.160(B).

         Because statutes creating liens are in derogation of the common law, we

strictly construe them. City of Algona v. Sharp, 30 Wn. App. 837, 843, 638 P.2d

627 (1982) (citing Dean v. McFarland, 81 Wn.2d 215, 500 P.2d 1244 (1972)).

Unless the statute lists a lien among the several types that one may execute

against a homestead, courts must infer that the legislature intended the omission

of the lien type from the Homestead Act. Sharp, 30 Wn. App. at 842. There is

not a statutory provision for execution or forced sale of a homestead to satisfy

liens under RCW 46.55.140(1). See RCW 6.13.080. Because “[t]he homestead

is . . . a species of land tenure exempt from execution and forced sale in all but


                                         16
No. 78230-4-I/17


the enumerated circumstances,” a lien type not enumerated in the Act cannot be

superior to the homestead. Sharp, 30 Wn. App. at 843.

          As for the attachment of liens under RCW 46.55.140(1), RCW 6.13.090

states, “A judgment against the owner of a homestead shall become a lien on the

value of the homestead property in excess of the homestead exemption . . . .”

While courts have not yet addressed the attachment process for liens under

RCW 46.55.140(1), they have determined that “a general judgment lien does not

operate upon, and does not attach to, premises which constitute a homestead.”

Locke v. Collins, 42 Wn.2d 532, 535, 256 P.2d 832 (1953); In re DeLavern, 337

B.R. 239, 242 (Bankr. W.D. Wash. 2005) (noting that, under Washington’s

Homestead Act, a judgment lien “cannot attach to homestead property”).

Instead, “[l]iens commenced under RCW 6.13.090 encumber the value in excess

of the homestead exception.” In re Deal, 85 Wn. App. 580, 584, 933 P.2d 1084

(1997).

          We see no reason why the attachment law for liens under

RCW 46.55.140(1) would differ from that for judgment liens, and therefore apply

these principles to the issue before us. Thus, while RCW 46.55.140(1) created a

lien on Long’s truck, it could not attach. See DeLavern, 337 B.R. at 242 (“Thus,

while a judgment lien is created on property rather than value pursuant to Wilson

Sporting Goods,[9] under the more specific analysis of Deal and Sweet, it cannot

attach to homestead property.”). Further, because Long’s truck did not have


          9
              Wilson Sporting Goods Co. v. Pedersen, 76 Wn. App. 300, 886 P.2d 203
(1994).


                                             17
No. 78230-4-I/18


value above the homestead exemption, there was no property to which the

RCW 46.55.140(1) lien could attach. For these reasons, we reject Long’s

argument that the attachment of a lien to his truck violated the Homestead Act.

       4. Withholding Truck under Threat of Forced Sale

       Long claims the City would release his truck, which it withheld under the

threat of forced sale, only if he agreed to a payment plan. The City responds that

the sale of an unclaimed vehicle is not forced. We decide that the City could not

withhold Long’s truck under the threat to forcibly sell it, or threaten to forcibly sell

it unless he agreed to pay the associated fees, without violating his homestead

rights. For these reasons, we determine the payment plan is void.

       If a registered owner does not claim their vehicle or contest impoundment

within 15 days of the tow, the tow truck operator “shall conduct a sale of the

vehicle at public auction.” RCW 46.55.130(1). The tow truck operator uses the

proceeds from the sale to satisfy its lien and remits any surplus to the State.

RCW 46.55.130(2)(h). The registered owner may seek the surplus proceeds

within one year of the sale. RCW 46.55.130(2)(h).

       Here, the City does not contest Long’s assertion that Lincoln Towing

would have sold his truck at public auction on November 5 if he had not agreed

to the payment plan three days earlier. Instead, it claims that any sale of the

truck would not have been a “forced sale” because Long consented to any such

sale by willfully violating the 72-hour Rule.

       Washington courts have defined a “forced sale” as a sale with an element

of compulsion:


                                           18
No. 78230-4-I/19


      “A forced sale is generally a transaction in which there is an element
      of compulsion on the part of either the seller or the buyer. If the
      element of compulsion is based upon purely economic reasons, the
      sale is generally considered voluntary . . . Where, however, a seller
      or buyer is forced to act under a decree, execution or something
      more than mere inability to maintain the property, the element of
      compulsion is based upon legal, not economic, factors.”

Felton v. Citizens Fed. Sav. & Loan Ass’n of Seattle, 101 Wn.2d 416, 422, 679

P.2d 928 (1984) (alteration in original) (quoting State v. Lacey, 8 Wn. App. 542,

549, 507 P.2d 1206 (1973)). “Impoundment under Wash. Rev. Code § 46.55 is

not a consensual consumer transaction.” Betts v. Equifax Credit Info. Servs.,

Inc., 245 F. Supp. 2d 1130, 1133 (W.D. Wash. 2003). Although the City argues

that selling an unclaimed vehicle at a public auction is a consensual transaction,

a state statute, not the registered owner, authorizes the sale of the vehicle. See

Betts, 245 F. Supp. 2d at 1134 (stating that impoundments are not consensual

because they are authorized by state statute, not the vehicle’s owner). In other

words, legal factors compel the sale. Accordingly, such a transaction constitutes

a forced sale. Thus, because Long’s truck constituted his homestead, the City—

through the tow operator—could not forcibly auction it.

      While the City did not ultimately forcibly sell Long’s truck, it did withhold

his truck under the threat of such a sale unless he agreed to pay the

impoundment costs. Liberally construing the Act to achieve its purpose of

protecting homes, we determine that this violated the Homestead Act. The City

had no legal authority to make the threat to induce Long to enter a payment plan.

Thus, we conclude the payment plan is void. See Sharp, 30 Wn. App. at 843

(noting that a sale of an exempted homestead is void).



                                         19
No. 78230-4-I/20


   B. Eighth Amendment

       The City argues the trial court erred by determining that the impoundment

costs violated the Eighth Amendment. Long contends that both the

impoundment and the associated costs constituted excessive punishment. We

determine that, assuming without deciding that the impoundment of Long’s truck

and the associated costs constituted penalties, they fell short of constitutional

excessiveness.

       “Constitutional interpretation is a question of law reviewed de novo.” State

v. Ramos, 187 Wn.2d 420, 433, 387 P.3d 650 (2017).

       The Eighth Amendment to the United States Constitution provides,

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.” The amendment’s purpose, apart from the bail

clause, is to limit the government’s power to punish. Austin v. United States, 509

U.S. 602, 609, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993). The Fourteenth

Amendment’s due process clause makes the Eighth Amendment’s excessive

fines clause applicable to the states. Timbs v. Indiana, __ U.S. __, 139 S. Ct.

682, 687, 203 L. Ed. 2d 11 (2019).

       When determining how the Eighth Amendment affects a specific civil in

rem forfeiture, courts address two questions: “(1) Does the forfeiture constitute

punishment, and (2) if so, is that punishment excessive?” Tellevik v. Real

Property Known as 6717 100th Street S.W., 83 Wn. App. 366, 372, 921 P.2d

1088 (1996). The party challenging the constitutionality of a forfeiture bears the




                                         20
No. 78230-4-I/21


burden of demonstrating an Eighth Amendment violation. United States v. Jose,

499 F.3d 105, 108 (1st Cir. 2007).

       In evaluating excessiveness, “[t]he touchstone of the constitutional inquiry

under the Excessive Fines Clause is the principle of proportionality: The amount

of the forfeiture must bear some relationship to the gravity of the offense that it is

designed to punish.” United States v. Bajakajian, 524 U.S. 321, 334, 118 S. Ct.

2028, 141 L. Ed. 2d 314 (1998). Thus, a punitive forfeiture violates the Eighth

Amendment if it is “grossly disproportional to the gravity of a defendant’s

offense.” Bajakajian, 524 U.S. at 334. If the value of the fine or forfeiture is

within the range prescribed by the legislative body, a strong presumption exists

that a forfeiture is constitutional. United States v. Seher, 562 F.3d 1344, 1371

(1st Cir. 2009).

       Here, impounding Long’s truck and requiring him to pay the associated

fees is not a disproportionate punishment for a parking violation. Moving a

vehicle has a direct relationship to the offense of illegally parking. And the fees

are not excessive because the impoundment costs repay the City’s agent,

Lincoln Towing, for the costs of towing the vehicle based on contract. “The

government is entitled to rough remedial justice.” State v. Clark, 124 Wn.2d 90,

103, 875 P.2d 613 (1994) (determining forfeitures of the defendant’s homestead

and motorhome were not excessive because their value nearly equaled the cost

of prosecution and investigation), overruled on other grounds by State v. Catlett,

133 Wn.2d 355, 945 P.2d 700 (1997). Moreover, towing illegally parked vehicles

and requiring the owner to pay the associated costs are the exact penalties the


                                          21
No. 78230-4-I/22


city council authorized for a violation of the 72-hour Rule. See

SMC 11.72.440(E). Thus, a strong presumption exists that the penalties were

not excessive, which presumption Long does not overcome. For these reasons,

we conclude that neither the impoundment nor the associated costs constituted

excessive punishment under the Eighth Amendment.

   C. Substantive Due Process

       Long contends that the City violated his substantive due process rights by

towing his car because it deprived him of a shelter and exposed him to inclement

weather. The City argues that Long cannot assert this claim to obtain relief from

impoundment. We agree with the City.

       The Fourteenth Amendment’s due process clause provides, “No state

shall . . . deprive any person of life, liberty, or property, without due process of

law.” U.S. CONST. amend. XIV, § 1. The substantive component of the clause

bars certain arbitrary and wrongful government actions regardless of procedural

fairness. Foucha v. Louisiana, 504 U.S. 71, 80, 112 S. Ct. 1780, 118 L. Ed. 2d

437 (1992). The clause, however, “is phrased as a limitation on the State’s

power to act, not as a guarantee of certain minimal levels of safety and security.”

DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 195, 109 S.

Ct. 998, 103 L. Ed. 2d 249 (1989). Thus, “[the clause’s] language cannot fairly

be extended to impose an affirmative obligation on the State to ensure that those

interests do not come to harm through other means.” DeShaney, 489 U.S.

at 195.




                                          22
No. 78230-4-I/23


        An exception to this rule of nonliability, however, exists through the state-

created danger doctrine. Munger v. City of Glasgow Police Dep’t, 227 F.3d

1082, 1086 (9th Cir. 2000). Thus, some courts have recognized that plaintiffs

can argue the doctrine to hold states liable under 42 U.S.C. § 1983.10 Henry A.

v. Willdren, 678 F.3d 991, 1002 (9th Cir. 2012) (“The State can also be held

liable under the Fourteenth Amendment’s Due Process clause . . . ‘where state

action creates or exposes an individual to a danger which [they] would not have

otherwise faced.’” (quoting Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061

(9th Cir. 2006))); Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 249 (5th Cir.

2003) (noting that the Tenth, Sixth, Third, Second, and Ninth Circuits have

recognized state actors may be held liable under the state-created danger

doctrine if they knowingly endanger a person).11 Long cites no case that

considers the state-created danger doctrine in a context other than a 42 U.S.C.

§ 1983 suit.

        Long cites two cases, Lawrence v. Texas, 539 U.S. 558, 578-79, 123 S.

Ct. 2472, 156 L. Ed. 2d 508 (2003), and Foucha, 504 U.S. at 77-83, to argue that

a plaintiff may raise a due process claim to obtain relief in an enforcement action.

        10
            Neither the United States Supreme Court nor any Washington court has
endorsed this doctrine.
         11
            Henry A. concerned a 42 U.S.C. § 1983 suit against a county and county
officials for alleged systematic failures in its foster care system that injured children in its
care. 678 F.3d at 996-98. Kennedy concerned a 42 U.S.C. § 1983 claim against a
police officer. 439 F.3d at 1057. In that case, a couple reported to the officer that a 13-
year-old neighbor had molested their child and informed the officer of the 13-year-old’s
violent tendencies. Kennedy, 439 F.3d at 1057-58. Though the officer told the couple
he would notify them before speaking to the neighbor about their complaint, he failed to
do so. Kennedy, 439 F.3d at 1058. Later that night, the 13-year-old attacked the
couple, shooting the woman and fatally shooting her husband. Kennedy, 439 F.3d at
1058.


                                              23
No. 78230-4-I/24


But neither of these cases addresses the state-created danger doctrine or

suggests that we should expand a narrow exception for liability to serve as a way

to pursue relief in civil enforcement actions. As a result, we determine Long

cannot raise the state-created danger doctrine to seek relief from impoundment.

   D. The Private Affairs Guaranty

         In supplemental briefing, Long relies on State v. Villela, 194 Wn.2d 451,

450 P.3d 170 (2019), to argue that the impounding officer’s failure to consider

whether impoundment was reasonable under Long’s individual circumstances or

whether reasonable alternatives existed to impoundment violated article I,

section 7 of the state constitution—i.e., the private affairs guaranty. The City

argues that Long cannot raise this issue for the first time on appeal. We agree

with the City.

         An appellate court may refuse to review any claim of error that a party did

not raise before the trial court. RAP 2.5(a). A limited exception exists, however,

for manifest errors affecting a constitutional right. RAP 2.5(a)(3). “To determine

whether manifest constitutional error was committed there must be a ‘plausible

showing by the [appellant] that the asserted error had practical and identifiable

consequences.’” State v. A.M., 194 Wn.2d 33, 38, 448 P.3d 35 (2019) (alteration

in original) (internal quotation marks omitted) (quoting State v. O’Hara, 167

Wn.2d 91, 99, 217 P.3d 756 (2009)). An appellant meets this requirement if they

make a plausible showing that the error led to actual prejudice. A.M., 194 Wn.2d

at 39.




                                          24
No. 78230-4-I/25


       To determine whether Long makes a plausible showing of actual

prejudice, we consider whether Long has sufficiently asserted a violation of

article l, section 7. Courts use a two-step analysis to determine whether the

government violated a person’s rights under article I, section 7 of the Washington

Constitution. Villela, 194 Wn.2d at 458. “First, [courts] ‘determine whether the

action complained of constitutes a disturbance of one’s private affairs.’ If so,

[they] turn to the second step: ‘whether authority of law justifies the intrusion.’”

Villela, 194 Wn.2d at 458 (citation omitted) (quoting State v. Puapuaga, 164

Wn.2d 515, 522, 192 P.3d 360 (2008)). Regarding the second step, our

Supreme Court has identified three instances in which a vehicle may be

impounded:

      A vehicle may be lawfully impounded (1) as evidence of a crime, when
      the police have probable cause to believe the vehicle has been stolen
      or used in the commission of a felony offense; (2) under the
      “community caretaking function” if (a) the vehicle must be moved
      because it has been abandoned, impedes traffic, or otherwise
      threatens public safety or if there is a threat to the vehicle itself and
      its contents of vandalism or theft and (b) the defendant, the
      defendant's spouse, or friends are not available to move the vehicle;
      and (3) in the course of enforcing traffic regulations if the driver
      committed a traffic offense for which the legislature has expressly
      authorized impoundment.

State v. Tyler, 177 Wn.2d 690, 698, 302 P.3d 165 (2013) (quoting State v.

Williams, 102 Wn.2d 733, 742-43, 689 P.2d 1065 (1984)). Ultimately, “an

impound is lawful under article l, section 7 only if, in the judgment of the

impounding officer, it is reasonable under the circumstances and there are no

reasonable alternatives.” Villela, 194 Wn.2d at 460.




                                          25
No. 78230-4-I/26


      As Long’s new claim arises under article I, section 7, it implicates a

constitutional right. But Long does not show a plausibility of practical and

identifiable consequences because he fails to show that the impoundment was

unlawful under article I, section 7. Because an impoundment is a seizure under

our constitution, Long shows a disturbance of his private affairs and meets the

first step of the analysis. See Villela, 194 Wn.2d at 458. Turning to the second

step, we must determine whether authority of law justifies the intrusion. Here,

the SMC permits police to impound vehicles parked in violation of the 72-hour

Rule. SMC 11.72.440(E). Thus, the police could lawfully impound Long’s truck

in enforcing traffic regulations.12

      Long also claims the impoundment was unlawful because the City did not

consider reasonable alternatives to impounding the truck. But Long told the

officers that the truck was inoperable and he needed a part to repair it. The PEO

was aware of this as well. Long also was not present when the PEO towed the

vehicle. Thus, both at the time the officers called the PEO and when the PEO

arrived to tow the truck, there did not appear to be a reasonable way to move the

truck other than to impound it. Indeed, Long does not suggest a reasonable

alternative to the impoundment.

         Because Long does not show that the impoundment was unlawful under

article I, section 7, he fails to make a plausible showing that the asserted




         12
              SMC 11.72.440(E) falls under Title 11, “Vehicles and Traffic,” Subtitle l, “Traffic
Code.”


                                                 26
No. 78230-4-I/27


constitutional violation had practical and identifiable consequences. We decline

to review the claim for the first time on appeal.

                                 III. CONCLUSION

       We affirm the superior court’s determination that the City violated Long’s

homestead rights by withholding his truck under the threat of forced sale and

refusing to release it until he signed a payment plan. Thus, we also affirm the

superior court’s decision to void the payment plan. And we affirm the superior

court’s conclusion that the City did not violate Long’s substantive due process

rights. Finally, we reverse the superior court’s determination that the

impoundment costs violate the Eighth Amendment and affirm its conclusion that

the impoundment itself did not constitute excessive punishment.

       We affirm in part and reverse in part.




WE CONCUR:




                                         27
