Hernandez v. City of Kent

• Decision Date: 25 October 2021
• Docket Number: No. 81783-3-I,81783-3-I
• Citation: 497 P.3d 871
• Parties: Adrian JACOBO HERNANDEZ, Appellant, v. CITY OF KENT, a Washington Municipal Corporation, Respondent.
• Court: Washington Court of Appeals

497 P.3d 871

Adrian JACOBO HERNANDEZ, Appellant,

v.CITY OF KENT, a Washington Municipal Corporation, Respondent.

No. 81783-3-I

Court of Appeals of Washington, Division 1.

FILED October 25, 2021

John Robert Carpenter, Alan Zarky, Federal Public Defender, 1331 Broadway Ste. 400, Tacoma, WA, 98402-3410, for Appellant.

Ifeoma Canfield, Smartsheet Inc., 10500 Ne 8th St, Ste, 1300, Bellevue, WA, 98004-4312, Benjamin B. Milgrom, Michele Dianna Walker, City of Kent Law Dept., 220 4th Ave. S, Kent, WA, 98032-5895, for Respondent.

PUBLISHED OPINION

Hazelrigg, J.

¶1 Adrian Jacobo Hernandez challenges the forfeiture of his vehicle by the City of Kent pursuant to a criminal investigation. Jacobo Hernandez concedes forfeiture was proper under RCW 69.50.505, but argues that the forfeiture violates the Excessive Fines Clause of the Eighth Amendment of the United States Constitution. Because an individual's financial circumstances must be considered prior to a forfeiture determination, and because Jacobo Hernandez was found to be indigent in this and the related criminal proceedings, the forfeiture of his only asset is grossly disproportionate and therefore unconstitutional. We reverse.

FACTS

¶2 In June 2018, Adrian Jacobo Hernandez was arrested during a controlled purchase of methamphetamine conducted by the City of Kent Police Department. Jacobo Hernandez had delivered methamphetamine to a residence in his Dodge Charger. While he used his vehicle to deliver the methamphetamine, the record demonstrates it was not purchased with drug money, but rather had been purchased out of salvage and restored by Jacobo Hernandez.

¶3 Jacobo Hernandez was charged in the United States District Court for the Western District of Washington and qualified for representation by a federal public defender. He entered a guilty plea to one count of possession with intent to distribute methamphetamine in May 2019. Jacobo Hernandez received multiple sentencing deductions under the Federal Sentencing Guidelines, including a "Minor Role Adjustment" and was ultimately sentenced to 24 months in prison and a mandatory assessment penalty of $100. No supervised release was ordered. The federal judge declined to impose a fine, finding that Jacobo Hernandez was "financially unable and [was] unlikely to become able to pay a fine." He has since completed his sentence and was removed from the United States.

¶4 In 2018, the City of Kent initiated forfeiture proceedings to seize Jacobo Hernandez’ vehicle. Jacobo Hernandez timely filed a request for a hearing, where he argued the forfeiture violated the Eighth Amendment Excessive Fines Clause because the vehicle (valued at $3,000 to $4,000) was the only asset in his estate. He had no bank accounts or savings other than $50 in his jail account. The hearing examiner found the forfeiture did not violate the Eighth Amendment and forfeited the vehicle to the Kent Police Department. This determination was affirmed by the King County Superior Court. He appeals.

HISTORY OF CIVIL ASSET FORFEITURE IN WASHINGTON

¶5 In 1971, Washington enacted RCW 69.50.505, permitting civil asset forfeiture. LAWS OF 1971, 1st Ex. Sess., ch. 308 § 69.50.505. The statute permitted forfeiture of property which was used or intended to be used in the manufacture, distribution, or acquisition of controlled substances. Id. The law enforcement agency who seized the property was permitted to retain the entirety of the property for official use, sell it and retain the proceeds, or forward it for disposition. Id. There were no reporting requirements. In 1982, the statute was amended, including requiring 50 percent of the proceeds from sold forfeitures to be deposited into the general fund of the state, county, and/or city of the law enforcement agency. LAWS OF 1982, ch. 171, § 1. In 1984, this was again changed to give 50 percent of sold forfeiture proceeds to the general fund and 50 percent to the state treasurer to be deposited in the public safety and education account. LAWS OF 1984, ch. 258, § 333.

¶6 In 1988, the statute was further amended and the legislature made explicit findings that the goal of civil asset forfeiture was to compensate law enforcement for the costs of investigating drug crimes and deter drug offenses by reducing profits from drug trafficking. LAWS OF 1988, ch. 282 § 2. The legislature also increased the amount of proceeds law enforcement could retain, allocating 75 percent of proceeds to the general fund of the state, county, and/or city, but requiring the money to be "used exclusively for the expansion or improvement of law enforcement services." Id. Twenty-five percent of proceeds were retained by the state treasurer to be deposited in the public safety and education account (unless the proceeds were less than $5,000). Id. Still, there were no reporting requirements. In 1992, the legislature permitted law enforcement to keep 100 percent of proceeds. LAWS OF 1992, ch. 211 § 2. Twenty years after the statute was created, the legislature added a requirement that law enforcement keep a record of the property and the amount of money, to be compiled and filed with the state treasurer quarterly. Id. The modern version of the statute allows law enforcement to keep 90 percent of the proceeds, remitting 10 percent to the state general fund. RCW 69.50.505. The recording requirement remains. Id.

¶7 During consideration of amendments to the statute in 2001, several stakeholders testified that they had concerns about underlying injustices in the statute. See HOUSE COMM. ON JUDICIARY, HB REP. on Substitute H.B. 1995, 57th Leg., Reg. Sess. (Wash. 1993). These stakeholders testified that "[t]he seizing agencies have a direct conflict of interest," and that "[t]here is no incentive to reign [sic] in police misconduct." Id. at 5. The stakeholders also identified disproportionate impacts, testifying that "[t]he vast majority of cases are small time cases, not big drug dealers." Id.

¶8 This testimony reflects many issues raised by legal scholars. The "Research Working Group of the Task Force on Race and the Criminal Justice System" reports numerous concerns about civil asset forfeiture.¹ The task force stated the law "creates a conflict between a law enforcement agency's economic self-interest and traditional law enforcement objectives" because law enforcement relies on forfeiture to fund their operations.² "Legitimate goals of crime prevention are compromised when salaries, equipment, and departmental budgets depend on how many assets are seized during drug investigations."³ Another concern reflected by the Research Working Group, and by Jacobo Hernandez, is that even indigent claimants do not have a right to appointed counsel during the proceedings. At oral argument before this court, defense counsel⁴ noted that Jacobo Hernandez would only have been able to pay counsel $7.50 an hour before his legal costs outweighed the value of the property seized.⁵

¶9 Civil asset forfeiture is a million-dollar industry in Washington. The Institute for Justice found that Washington State accumulated nearly $145 million in civil asset forfeitures between 2001 and 2018.⁶ Last year the state accumulated $11.9 million, $11.6 million of which came from drug offense forfeitures.⁷ These figures do not include proceeds the state received from federal forfeitures.

¶10 With this legislative and procedural history in mind, we turn to Jacobo Hernandez’ constitutional challenge.

ANALYSIS

I. Mootness

¶11 As a general rule, this court does not decide moot cases where the court can no longer provide effective relief. Westerman v. Cary, 125 Wash.2d 277, 286, 892 P.2d 1067 (1994). "However, a recognized exception permits an appellate court, at its discretion, to ‘retain and decide an appeal which has otherwise become moot when it can be said that matters of continuing and substantial public interest are involved.’ " Id. (quoting Sorenson v. City of Bellingham, 80 Wash.2d 547, 558, 496 P.2d 512 (1972) ). There are several factors to consider in determining whether an appeal involves matters of continuing and substantial public interest: (1) public or private nature of the issue; (2) whether a determination is desirable to give guidance to public officers; (3) whether the issue is likely to recur; (4) level of adverseness and quality of advocacy; and (5) the likelihood that the issue will escape review due to short-lived facts. Id. at 286–87, 892 P.2d 1067.

¶12 Less than 24 hours before oral argument, Jacobo Hernandez submitted an unopposed motion to dismiss his appeal, stating that the parties had reached a monetary settlement. We denied the motion. After oral argument, the parties confirmed they were continuing to move forward with their prior settlement agreement, despite the court's denial of the motion to dismiss, and expected the agreement to be finalized within a few weeks. Because the parties have reached a settlement, this court cannot provide effective relief. See Id. at 287, 892 P.2d 1067. However, review is justified because the issues involved in this appeal are matters of "continuing and substantial public interest." Id. at 286, 892 P.2d 1067.

¶13 First, the issue is public in nature. The appeal comes from a municipal proceeding initiated by the City of Kent pursuant to statutory authority allowing localities to forfeit vehicles which are used to facilitate the delivery of controlled substances. See RCW 69.50.505.

¶14 Second, an authoritative determination is desirable to give guidance to public officers, particularly hearing examiners who are responsible for deciding whether a forfeiture violates the Constitution. While this appeal was pending, the Washington State Supreme Court issued its opinion in City of Seattle v. Long, ––– Wash.2d ––––, 493 P.3d 94 (2021). Long revised the test for the Excessive Fines Clause, expressly requiring courts to consider the defendant's ability to pay when conducting an excessive fine analysis. Id. at 107. This case presents an issue of first...