John Urquhart v. $6,510.00 And Richard Mendall ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JOHN URQUHART, in his capacity as
King County sheriff; and KING COUNTY No. 75026-7-
SHERRIFF'S OFFICE ,
DIVISION ONE
Respondents,
UNPUBLISHED OPINION
$6,510.00 CASH AND ALL NON-
CONTRABAND SEIZED ITEMS,
Defendant In Rem,
and
RICHARD MENDALL,
Appellant. FILED: December 27, 2016
Appelwick, J. — Mendall seeks return of property on the basis that the
forfeiture hearing was untimely. The hearing examiner did not abuse her
discretion by granting continuances for a medical emergency and a preplanned
vacation. The hearing was not untimely. We affirm.
FACTS
King County Sheriff's Deputies seized weapons, drugs, and cash from
Richard Mendall during a traffic stop. On June 9, 2014, the King County Sheriff's
Office (KCSO) mailed a notice of seizure and intended forfeiture to Mendall. In
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JOHN URQUHART, in his capacity as
King County sheriff; and KING COUNTY No. 75026-7-I
SHERRIFF'S OFFICE ,
DIVISION ONE
Respondents,
UNPUBLISHED OPINION
$6,510.00 CASH AND ALL NON-
CONTRABAND SEIZED ITEMS,
Defendant In Rem,
and
RICHARD MENDALL,
Appellant. FILED:
Appelwick, J. — Mendall seeks return of property on the basis that the
forfeiture hearing was untimely. The hearing examiner did not abuse her
discretion by granting continuances for a medical emergency and a preplanned
vacation. The hearing was not untimely. We affirm.
FACTS
King County Sheriff's Deputies seized weapons, drugs, and cash from
Richard Mendall during a traffic stop. On June 9, 2014, the King County Sheriffs
Office (KCSO) mailed a notice of seizure and intended forfeiture to Mendall. In
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response, on July 3, 2014, Mendall mailed a notice of claim and request for a
hearing regarding the forfeiture.
On September 22, 2014, KCSO sent Mendall a notice of hearing set for
September 30, 2014. On September 27, 2016, the hearing examiner granted
KCSO a continuance to "the first week of December" due to a serious health
emergency involving counsel's family. KCSO's counsel was not available until
October 22, 2014. The hearing examiner had previously advised that her first
availabilities after October 22 would be December 2-3, December 8-11, or
December 16-18. On November 17, 2014, KCSO e-mailed Mendall, stating that
the hearing examiner would not be available until the second week of December.
Citing due process, Mendall objected to the hearing being set beyond the first
week of December.
The hearing occurred on December 9, 2014. The hearing examiner ruled
in KCSO's favor, and Mendall therefore forfeited the property. The superior court
affirmed the hearing examiner. Mendall sought direct review from the Supreme
Court. The Supreme Court denied that request and transferred the appeal to this
court.
DISCUSSION
Mendall makes two arguments. First, he acknowledges that the timing of
the forfeiture hearing complied with existing precedent. But, he argues that we
should overturn that precedent. Second, he argues that the hearing examiner
abused her discretion by granting two continuances without good cause.
No. 75026-7-1/3
I. Timely Hearing
Mendall's first argument is straightforward. He asks this court to overturn
its own precedent on civil forfeiture procedure.
Mendall believes that his due process rights were violated, because the
forfeiture hearing was scheduled over 90 days from the date of seizure. KCSO
responds that the hearing needs to be scheduled within 90 days of Mendall's
claim challenging the seizure. This presents a question of law, that this court
reviews de novo. Escamilla v. Tri-Citv Metro Drug Task Force, 100 Wash. App.
742, 747, 999 P.2d 625 (2000), abrogated on other grounds by In re Forfeiture of
One 1970 Chevrolet Chevelle, 166 Wash. 2d 834, 215 P.3d 166 (2009).
Under both Washington and federal law, a law enforcement agency must
give an individual notice of its intent to permanently seize property, and that
individual must have the opportunity to be heard. RCW 69.50.505(3); United
States v. James Daniel Good Real Prop., 510 U.S. 43, 48, 114 S. Ct. 492, 126 L
Ed. 2d 490 (1993). Within 45 days of service of notice that personal property has
been seized, the person must respond with notice that he or she intends to
contest the seizure. RCW 69.50.505(5). This response triggers a right to a
forfeiture hearing within 90 days. In re the Forfeiture of One 1988 Black
Chevrolet Corvette, 91 Wash. App. 320, 323, 963 P.2d 187 (1997). The
Administrative Procedure Act, chapter 34.05 RCW, and Washington case law
govern forfeiture proceedings in Washington. See Black Chevrolet Corvette, 91
Wash. App. at 323.
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Two Supreme Court cases clarify this statutory scheme, Tellevik v. 31641
West Rutheford Street, 120 Wash. 2d 68, 838 P.2d 111, 845 P.2d 1325 (1992)
(Tellevik I), and Tellevik v. 31641 West Rutheford Street, 125 Wash. 2d 364, 884
P.2d 1319 (1994) (Tellevik II). In Tellevik I, the claimants alleged that RCW
69.50.505 contained insufficient procedural safeguards and thus was
unconstitutional. 120 Wash. 2d at 77. The Supreme Court read a 90 day time
limitation into RCW 69.50.505 "in order to preserve the constitutionality of the
statute." Id at 85-86. Specifically, it held that due process entitles claimants "to
a full adversarial [forfeiture] hearing within 90 days." jd, at 86. Tellevik II
solidified this principle two years later. There, the Supreme Court found that an
agency's failure to even provide a hearing date for nearly six months violated
claimants' due process rights. Tellevik II, 125 Wash. 2d at 372-73. The Court noted
that "the 90-day hearing requirement articulated in Tellevik I is not dicta, but is,
instead, central to its holding." \_± at 372 (emphasis in original).
Tellevik I and Tellevik II left open the question of what event triggers the
90 day hearing window. As Mendall notes, the plain language of RCW
69.50.505(3) states that "proceedings for forfeiture shall be deemed commenced
by the seizure." (Emphasis added.) But, in Black Chevrolet Corvette, this court
held that the right to a hearing within 90 days is triggered bv the claimant giving
notice of a claim contesting the seizure. 91 Wash. App. at 322-24. The court
reasoned that that
The applicable provisions of the Administrative Procedure Act
(APA) require that hearing commence within 90 days, RCW
34.05.419, and further provide that the hearing commences when
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the agency or hearing officer notifies a party that some stage of the
hearing will be conducted.
\± at 322; see also RCW 34.05.413(5). Therefore, because a hearing will only
"be conducted" if a claimant serves a notice of claim, that notice of claim triggers
the 90 day window. Black Chevrolet Corvette, 91 Wash. App. at 324; Escamilla,
100 Wash. App. at 749 "[Proceedings must be commenced within 90 days of the
date a claimant notifies the seizing agency of a claim.").
Mendall concedes that the hearing was scheduled within 90 days of his
notice of claim and that the hearing examiner properly applied Black Chevrolet
Corvette. But, he explicitly asks us to overturn this court's decisions in Black
Chevrolet Corvette and Escamilla. Mendall argues that this is warranted in light
of the "plain language of 69.50.505(3)."
Although RCW 69.50.505(3) states that "proceedings for forfeiture shall be
deemed commenced bv the seizure," there is no indication that the right to a
hearing within 90 days also commences on that date. Rather, the 90 day window
is governed by the APA. Black Chevrolet Corvette, 91 Wash. App. at 323-24.
RCW 69.50.505(5) states that a "hearing before the seizing agency and any
appeal therefrom shall be under Title 34 RCW," which contains the APA. And,
the APA explicitly states that "within 90 days after receipt of [an] application ...
the agency shall . . . [c]ommence an adjudicative proceeding." RCW
34.05.419(1 )(b) (emphasis added). In the context of forfeiture, the claimant's
notice of claim serves as the "application," because the notice of claim is the
document that triggers the forfeiture hearing. This sound reasoning governed the
result in Black Chevrolet Corvette. 91 Wash. App. at 324. It also governs here.
No. 75026-7-1/6
We hold that the KCSO properly scheduled Mendall's hearing within 90
days of Mendall serving his notice of claim against the seizure.
II. Good Cause for Continuance
Mendall also argues that the hearing examiner improperly granted two
continuances. As an initial matter, these continuances moved the hearing date
beyond the 90 day window. However, continuances that move a timely
scheduled hearing date beyond 90 days after the seizure do not violate Tellevik
or its progeny. See City of Pes Moines v. Pers. Prop. Identified as $81,231 in
U.S. Currency, 87 Wash. App. 689, 698, 943 P.2d 669 (1997). Thus, the remaining
question is whether the hearing examiner properly granted these continuances.
A hearing examiner has the authority to grant continuances. WAC 10-08-
090(1). The hearing examiner may order a continuance if a party shows good
cause and may consider many factors, including whether there is prejudice to the
defendant's presentation of his case. ]d\; State v. Chichester, 141 Wash. App. 446,
459-60, 170 P.3d 583 (2007). This court reviews a grant of a continuance for
abuse of discretion. State v. Hurd, 127 Wash. 2d 592, 594, 902 P.2d 651 (1995).
An abuse of discretion occurs when a decision is manifestly unreasonable or
rests on untenable reasons. Davis v. Globe Mach. Mfg. Co.. 102 Wash. 2d 68, 77,
684 P.2d 692 (1984).
Here, the hearing examiner originally continued the hearing until "the first
week of December." She then set it for the Monday following that week,
December 9, 2014, based on two conflicts. First, KCSO's counsel faced a family
health emergency. She was not available for the hearing from September 26 to
No. 75026-7-1/7
October 22. Second, the hearing examiner had a prescheduled vacation that
overlapped with KCSO's counsel's absence. At the time, the hearing examiner's
next available dates after KCSO's counsel's return were December 2-3 or
December 8-11. Mendall does not argue that he was prejudiced.1 Thus, the only
issue is whether the hearing examiner abused her discretion in finding good
cause supported the continuances based on a family health emergency and then
a preplanned vacation.
First, Washington courts routinely find good cause for illness. See, e.g.,
State v. Ruud, 6 Wash. App. 57, 59, 491 P.2d 1351 (1971) (finding good cause
when "counsel became ill"). Mendall does not dispute the existence of a family
health emergency. No published Washington decision explicitly endorses
counsel's family health emergency as "good cause," but neither does one reject
it. We decline to hold that the trial court abused its discretion in granting a
continuance for a family health emergency. This is especially true in light of the
case law on continuances for vacations, which may have planning and cost
implications but lack the immediacy of a family health emergency. See, e.g..
State v. Jones. 117 Wash. App. 721, 729, 72 P.3d 1110 (2003) ("[A]ttorney's
prescheduled vacation is an adequate basis to justify a continuance.").
1 Mendall's briefing contains no discussion of how the two month delay
prejudiced his case. Instead, Mendall asserts that he "need not show prejudice
here." Granted, prejudice is only a factor that the hearing examiner considers in
determining whether to grant a continuance. Chichester. 141 Wash. App. at 459-
60. But, the lack of prejudice further shows that the hearing examiner did not
abuse her discretion in granting a continuance.
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Second, Washington courts have also found that prescheduled vacations
constitute good cause for the purposes of a continuance. See State v. Grillev. 67
Wash. App. 795, 800, 840 P.2d 903 (1992) ("[T]he District Court did not abuse its
discretion in granting a continuance where the investigating officers were
unavailable due to their scheduled vacations."); State v. Selam, 97 Wash. App. 140,
143, 982 P.2d 679 (1999) ("[W]e cannot say the trial court abused its discretion in
granting a brief continuance while the defense counsel was on vacation."); State
v. Heredia-Juarez. 119 Wash. App. 150, 155, 79 P.3d 987 (2003) (holding that
prosecutor's vacation warranted continuance, and that reassignment to an
available prosecutor was not necessary). Granting the continuances based on a
preplanned vacation and a family medical emergency was not an abuse of
discretion.
We affirm.
WE CONCUR:
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