Rozner v. City of Bellevue

Decision Date31 January 1991
Docket NumberNo. 57021-3,57021-3
Citation804 P.2d 24,116 Wn.2d 342
PartiesLouie * ROZNER, Respondent, v. The CITY OF BELLEVUE, Petitioner. En Banc
CourtWashington Supreme Court

Richard L. Andrews, Bellevue City Atty., David E. Kahn, Lori Molander, Asst. City Attys., Bellevue, for petitioner.

Michael H. Rosen, Nancy L. Talner, Seattle, for respondent.

Kenneth O. Eikenberry, Atty. Gen., John R. Ellis, Deputy Atty. Gen., David M. Horn, Asst. Atty. Gen., Seattle, William J. Barker, Tacoma City Atty., Cheryl F. Carlson, Asst. City Atty., John W. Ladenburg, Pierce County Prosecutor, Jack F. Nevin, Sp. Deputy, Tacoma, amici curiae for petitioner on behalf of Washington Ass'n of Mun. Attys.

J.A. Zimmerman, Seattle, amici curiae for petitioner on behalf of Washington Ass'n of Sheriffs and Police Chiefs.

Richard J. Troberman, P.S., Seattle, amicus curiae for respondent on behalf of Washington Ass'n of Criminal Defense Lawyers.

DOLLIVER, Justice.

The sole issue facing the court is whether a law enforcement agency which has seized personal property based on probable cause has the burden of proof at the forfeiture hearing to show the property to be forfeited was used to facilitate the sale of a controlled substance. The Court of Appeals "[a]s a matter of statutory construction [held] former RCW 69.50.505 (under which this case was decided) ... placed the burden on the governmental agency to establish by a preponderance of the evidence that the property sought to be forfeited was used, or intended to be used, to facilitate a drug sale." Rozner v. Bellevue, 56 Wash.App. 525, 531, 784 P.2d 537 (1990). We reverse.

The essential facts are as follows: On October 3, 1986, Bellevue Police Detective Bronson obtained a search warrant for a 1984 Ford van suspected of being used to facilitate a drug transaction. The van was seized, and the City of Bellevue sought forfeiture of the van pursuant to RCW 69.50.505(a)(4). Plaintiff Louie Rozner filed a claim of ownership and resisted forfeiture. At a hearing on the matter, the City of Bellevue presented Detective Bronson's affidavit of probable cause and evidence that a mirror with a small amount of cocaine on it was found in the van when the vehicle was impounded. Plaintiff neither appeared personally at the hearing nor did he offer any evidence.

Forfeiture of the van was ordered by the hearing examiner. The forfeiture was upheld by the Superior Court. The Court of Appeals reversed holding the City had not proved, by a preponderance of the evidence, that the van was subject to forfeiture. Dissenting, Chief Judge Coleman argued the burden of proof lay with plaintiff Rozner, not the City. We granted review.

Under Washington's forfeiture statute, "[a]ll conveyances", including vehicles "used, or intended for use, in any manner to facilitate the sale" of controlled substances are subject to seizure and forfeiture. RCW 69.50.505(a)(4). At the time of this case, RCW 69.50.505(e) gave any person claiming a right to possession of the seized vehicle the right to a hearing, at which "the burden of producing evidence shall be upon [that] person ..." Former RCW 69.50.505(e).

In 1988, however, the Legislature amended RCW 69.50.505 both to make real property subject to forfeiture and to place the "burden of producing evidence" in such cases on the State. Laws of 1988, ch. 282, § 2(e), pp. 1299, 1302. The Governor vetoed this amendment, explaining that the law enforcement community had rejected the bill, in part, because the amendment shifted the burden of proof to law enforcement. Laws of 1988, at 1304. The Governor urged the Legislature to work with the law enforcement community and "pass a law which allows law enforcement to continue under existing law for the 'personal property' forfeitures while adding new separate provisions for 'real property' forfeitures." Laws of 1988, at 1304. The 1989 Legislature amended RCW 69.50.505(e) so as to read:

In cases involving personal property, the burden of producing evidence shall be upon the person claiming to be the lawful owner or the person claiming to have the lawful right to possession of [the items seized]. In cases involving real property, the burden of producing evidence shall be upon the law enforcement agency. The burden of proof that the seized real property is subject to forfeiture shall be upon the law enforcement agency.

Laws of 1989, ch. 271, § 212, pp. 1299, 1302.

The issue of whether the law enforcement agency, having shown probable cause for seizure, must then also show by a preponderance of the evidence that the personal property was used to facilitate a drug sale has yet to be considered squarely by an appellate court. In Irwin v. Mount, 47 Wash.App. 749, 753, 737 P.2d 277 (1987), the Court of Appeals held RCW 69.50.505(e) placed an "initial burden ... upon the claimant to show a lawful interest in the subject property", but did not decide whether a claimant whose standing to challenge the forfeiture is thus established must prove the property is not subject to forfeiture. In State v. Michel, 55 Wash.App. 841, 781 P.2d 496 (1989), the Court of Appeals touched upon this question by stating:

The statute here, in three different sections [former RCW 69.50.505(a)(4)(ii) and (e); RCW 69.50.506(a) ], unambiguously provides that the claimant has the burden of proving lack of knowledge, the lawful right to possession, or any exemption or exception to the State's prima facie case for forfeiture.

Michel, 55 Wash.App. at 844, 781 P.2d 496. Michel, however, dealt only with the claimant's burden to establish lack of knowledge, exceptions, and exemptions where the claimant does not dispute whether the seizing agency met its initial burden. The court expressly relied on a Maryland opinion which held,

[O]nce the illicit use of the vehicle is shown, the vehicle is presumptively subject to forfeiture and the burden of proof is upon the owner to demonstrate entitlement to an exemption from that presumptive forfeiture.

Michel, 55 Wash.App. at 844, 781 P.2d 496 (quoting State v. One 1985 Ford, 72 Md.App. 144, 147, 527 A.2d 1311, 1312 (1987)). While the Michel court did not specifically address the standard of proof needed for forfeiture or which party carries the burden, it appears that by inference it adopted the probable cause standard. But see In re One 1980 Porsche, 54 Wash.App. 498, 502, 774 P.2d 528 (1989). Was it the intent of the Legislature that, following the establishing of probable cause for seizure of the property, the burden of proof on the issue of forfeiture would shift to the claimant? We hold this was the intent.

The fundamental objective of statutory construction is to ascertain and carry out the intent of the Legislature. Bellevue Fire Fighters Local 1604 v. Bellevue, 100 Wash.2d 748, 751, 675 P.2d 592 (1984), cert. denied, 471 U.S. 1015, 105 S.Ct. 2017, 85 L.Ed.2d 299 (1985). Where statutory language is plain and unambiguous, the statute's meaning must be derived from the wording of the statute itself. Bellevue Fire Fighters, 100 Wash.2d at 750, 675 P.2d 592.

Where the legislative intent does not clearly appear on the face of the statutory language, as is the case here, in order to determine intent the court may resort to various tools of statutory construction which may include consideration of the legislative history and administrative interpretation of the statute. However, the interpretation adopted should always be one which best advances the legislative purpose. Department of Transp. v. State Employees' Ins. Bd., 97 Wash.2d 454, 458-59, 645 P.2d 1076 (1982). The City and its amicus advance several arguments in support of legislative intent for a probable cause evidentiary standard. Although all have some merit, we believe the strongest case for a probable cause standard and the argument which persuaded Chief Judge Coleman in his dissent (Rozner, 56 Wash.App. at 538, 784 P.2d 537 (Coleman, C.J., dissenting)) focuses on the proposed amendments to the Uniform Controlled Substances Act (RCW 69.50) in 1988 and 1989 and Governor Gardner's veto of the 1988 amendment.

Plaintiff asserts subsequent legislative views are irrelevant to establish original legislative intent. However, the Supreme Court has held,

while the views of subsequent Congresses cannot override the unmistakable intent of the enacting one, such views are entitled to significant weight, and particularly so when the precise intent of the enacting Congress is obscure.

(Citations omitted.) Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 596, 100 S.Ct. 800, 813, 63 L.Ed.2d 36 (1980). Chief Judge Coleman cogently spells out the legislative intent in his dissent. We agree with his conclusion and can do no better than to quote his words:

In 1988, both houses of the Legislature passed ESSB 6316, which would have amended RCW 69.50.505. At that time, RCW 69.50.505 did not address seizure and forfeiture of real property--rather it concerned only personal property. The primary objective of the amending legislation was to provide law enforcement with the additional necessary tools to seize real property acquired and used in furtherance of the illegal drug trade. In addition, the bill also sought to shift the burden of producing evidence in a hearing to reclaim seized property from the claimant to the law enforcement agency that seized the property.

The Governor vetoed all material sections of the bill. In his veto message, the Governor advised the Senate that among other changes, the wholesale shift in the "burden of proof", for both the existing personal property provisions and the new real property provisions, would retard law enforcement's efforts to seize property related to illegal drug transactions. The Governor added:

I would encourage the Legislature and the law enforcement community to work together in the next session to again review this issue and attempt to pass a law which allows law enforcement to continue under existing law for the ...

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