MOTOR VEHICLES ‑- ABANDONED ‑- POTENTIAL LIABILITY OF LAW ENFORCEMENT OFFICER FOR MISTAKE IN EVALUATION OF ABANDONED MOTOR VEHICLE

MOTOR VEHICLES ‑- ABANDONED ‑- POTENTIAL LIABILITY OF LAW ENFORCEMENT OFFICER FOR MISTAKE IN EVALUATION OF ABANDONED MOTOR VEHICLE

Where a law enforcement officer, acting in good faith, determines that an abandoned motor vehicle meeting the other qualifications set forth in § 1 (1), chapter 111, Laws of 1971, 1st Ex. Sess., has a fair market value of $50 or less, and on the basis of this evaluation authorizes the disposal of the vehicle as an "abandoned junk motor vehicle," the officer will have a defense against liability to the owner of the vehicle in an action for a conversion thereof if it is later proven that the vehicle disposed of was actually worth more than this amount.

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                                                               December 15, 1971

Honorable John C. Merkel
Prosecuting Attorney
Kitsap County
614 Division Street
Port Orchard, Washington 98366

                                                                                                                 Cite as:  AGO 1971 No. 41

Dear Sir:

            This is in response to your request for an opinion of this office on a question which we paraphrase as follows:

            Where a law enforcement officer, acting in good faith, determines that an abandoned motor vehicle meeting the other qualifications set forth in § 1 (1), chapter 111, Laws of 1971, 1st Ex. Sess., has a fair market value of $50 or less, and on the basis of this evaluation authorizes the disposal of the vehicle as an "abandoned junk motor vehicle," will the officer have a defense against liability to the owner of the vehicle in an action for a conversion thereof if it is later proven that the vehicle disposed of was actually worth more than this amount?

            We answer this question in the affirmative for the reasons set forth in our analysis.

             [[Orig. Op. Page 2]]                       ANALYSIS

            By its enactment of chapter 111, Laws of 1971, 1st Ex. Sess., the legislature established new procedures for disposing of those motor vehicles which have ostensibly been abandoned.  Your question involves the potential tort liability of a law enforcement officer acting pursuant to these provisions.

            Section 1 (1) of the act defines an "abandoned junk motor vehicle" as follows:

            "(1) 'Abandoned junk motor vehicle' means any motor vehicle substantially meeting the following requirements:

            "(a) Left on private property for more than seventy-two hours without the permission of the person having right to the possession of the property, or a public street or other property open to the public for purposes of vehicular travel or parking, or upon or within the right of way of any road or highway, for forty-eight hours or longer;

            "(b) Three years old, or older;

            "(c) Extensively damaged, such damage including but not limited to any of the following:  A broken window or windshield, missing wheels, tires, motor, or transmission;

            "(d) Apparently inoperable;

            "(e) Without a valid, current registration plate;

            "(f)Having a fair market value of fifty dollars or less."  (Emphasis supplied.)

            Section 2 then provides that:

            "Notwithstanding any other provision of law, any law enforcement officer  [[Orig. Op. Page 3]] having jurisdiction or any person authorized by the director of motor vehicles shall inspect and may authorize the disposal of an abandoned junk motor vehicle.  The officer or authorized person shall record the make of such motor vehicle, the serial number if available, and shall also detail the damage or missing equipment to substantiate the value at fifty dollars or less.

            ". . ."  (Emphasis supplied.)

            In order to present the precise issue which we understand to be raised by your request, we have in paraphrasing your question stipulated the uncontested existence of all of the elements of the definition in § 1 (1), supra, except that of value.  On this point we have assumed that the officer, although acting in good faith, has made a mistake in his appraisal of whether or not the vehicle in question has ". . . a fair market value of fifty dollars or less. . . ."

            The central principle to be kept in mind in considering your question is that public officers are generally held to be immune from liability for their mere errors in judgment resulting from the good faith exercise of authorizeddiscretionary powers.  Conversely, a public officermay be found personally liable for his own negligence in the performance of aministerial act.  See, generally, Davis, Administrative Law Treatise, §§ 26.01, etseq.

            The law in Washington is that, in the absence of corrupt or malicious motives, public officers are not liable personally for errors or mistakes of judgment (and this includes the misconstruction of a statute) in the performance of duties involving the exercise of judgment and discretion.  Tacoma v. Peterson, 165 Wash. 461, 5 P.2d 1022 (1931); Whatcom County v. Langlie, 40 Wn.2d 855, 246 P.2d 836 (1952).

            For the most part, the Washington cases and the bulk of those from other jurisdictions upholding immunity for discretionary acts concern officers holding high-level management or executive positions.  However, recent case law  [[Orig. Op. Page 4]] from other jurisdictions indicates a willingness on the part of the courts to extend this immunity to those lower-level personnel whose activities are largely ministerial where it is clear that they were authorized to exercise discretion in the given situation.  See,Jones v. Czapkay, 182 C.A.2d 192 [[182 Cal.App.2d 192]], 6 Cal.Rptr. 182 (1960);List v. O'Connor, 21 Ill. App.2d 399, 158 N.E.2d 103 (1959);Garner v. Rathburn, 232 F.Supp. 598 (D.C. Colo., 1964).  It is our best judgment, then, that the Washington court would extend immunity from personal liability to those public officers whose duties, though largely ministerial, require the exercise of discretion in specific contexts ‑ to the extent that the particular case involves discretionary rather than ministerial action.

            This brings us to the question of whether chapter 111, Laws of 1971, 1st Ex. Sess.,supra, necessitates the exercise of judgment by an individual engaged in determining the "fair market value" of an apparently abandoned automobile.

            An act of a public officer is ministerial where the law prescribes and defines the act to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.  State ex rel. Lindan v. Bunge, 192 Wash. 245, 73 P.2d 516 (1937); Kruse v. Lovette, 52 Wn.2d 215, 324 P.2d 819 (1958).  With this in mind we must ask:  Is the pertinent action defined in chapter 111,supra, so precise and certain as to preclude entirely the exercise of judgment or discretion?

            To be sure, the provisions of § 2 require the officer to engage in the "ministerial" task of detailing the damage and missing equipment "to substantiate the value at fifty dollars or less."  For the reasons set forth in the remainder of our analysis, however, we are of the opinion that this section was intended only to establish a record of the vehicle's condition in the event of a later claim that the car was worthsignificantly more than fifty dollars.  The purpose of the provision is to protect against an abuse of discretion, but not to preclude its exercise altogether.

            In our opinion, the legislature's intent to allow for the exercise of judgment is positively evidenced in the wording of § 1 (1), supra, which defines an "abandoned junk motor vehicle" as one which "substantially" meets the  [[Orig. Op. Page 5]] described requirements thereafter set forth.  Webster's New World Dictionary of the American Language (1968), defines the word "substantially" as follows:

            "1. In a substantial manner; solidly; firmly; with strength.  2. to a substantial degree; specifically, a) truly; really; actually.  b) largely; essentially; in the main."

            InGilmore v. Red Top Cab Co., 171 Wash. 346, 17 P.2d 886 (1933), it was said:

            "'Substantially' may mean 'part' or 'about.'  It is a term which has been defined to mean 'about; actually; competently; essentially.' . . ."

            We are of the opinion that the use of the word "substantially" to modify the requirement that the vehicle "[have] a fair market value of fifty dollars or less," is indicative of legislative intent to allow leeway.1/   During each inspection, then, the judgment of the individual is called into play in deciding whether the vehicle is worth "about" or "essentially" fifty dollars or less.

            Moreover, since the statute clearly authorizes the exercise of judgment and discretion as to other matters, we are further inclined to the view that judgment is to be exercised in assessing the value of the vehicle to be fifty dollars or less.  Statutes are to be construed as a whole, and the intention of the legislature is to be determined from the consideration of all of the provisions of the statute.  Finley v. Finley, 43 Wn.2d 755, 264 P.2d 246 (1953); Alderwood Water District v. Pope & Talbot, Inc., 62 Wn.2d 319, 382 P.2d 639 (1963); State v. Lee, 62 Wn.2d 228, 382 P.2d 491 (1963).  Section 1 (1) (c) and (d), for example, call for the exercise of judgment both as to what constitutes "extensively damaged" and as to when a vehicle is "apparently inoperable."

             [[Orig. Op. Page 6]]   The conferring of discretion is, likewise, evident from that portion of § 2, supra, which provides that a law enforcement officer or other authorized person "shall inspect and may authorize" disposal of a motor vehicle under the act.  The foregoing emphasized portion of § 2, while apparently mandatory in so far as it requires the officer to inspect, makes it discretionary with him whether or not to dispose of the vehicle as otherwise provided for by the act.  The general rule of statutory construction has long been that the word "may," when used in a statute or ordinance, is permissive and operates to confer discretion.  Spokane County ex rel. Sullivan v. Glover, 2 Wn.2d 162, 97 P.2d 628 (1940);Paterson v. Paterson, 70 Wn.2d 204, 422 P.2d 474 (1967); State ex rel. Beck v. Carter, 2 Wn.App. 974, 471 P.2d 127 (1970).  In addition, a statute which embodies both discretionary and mandatory language operates only to raise the inference that the legislature realized the difference between the two usages.  State ex rel. Beck v. Carter, supra.  The authorization to exercise judgment and discretion in these other instances is, in our judgment, supportive of our earlier determination that the valuation provision necessarily implies an exercise of judgment.