Tacoma Police Dep't v. $51,657.39 U.S. Currency
| Decision Date | 02 March 2021 |
| Docket Number | No. 54510-1-II,54510-1-II |
| Citation | 481 P.3d 1122 |
| Court | Washington Court of Appeals |
| Parties | TACOMA POLICE DEPARTMENT, Respondent, v. $51,657.39 UNITED STATES CURRENCY; One 2008 Honda Odyssey, LIC#BIK7412, VIN#5FNRL38278B028851; 37 Solistek Ballast Light Combos; 127 Suntech II Ballast Light Combos; 8 Ares II Ballast Light Combos; 20 Gavita Ballast Light Combos; 2 E-Fusion Ballast Light Combos; 10 Suntech Ballasts; 7 Galaxy Ballasts; 9 Suntech Ballasts; 1 Energy Station Ballast; 3 Charcoal-Activated Filters; 1 In-line Fan; and 16 Light Shades, Defendants in Rem, Hong Mei Zhen, Appellant. |
Derek Michael Smith, The Law Offices of Smith and White, PLLC, 717 Tacoma Ave. S Ste. C, Tacoma, WA, 98402-2224, for Appellant.
Keith A. Echterling, Tacoma City Attorney's Office, 930 Tacoma Ave. S Rm. 440, Tacoma, WA, 98402-2118, for Respondent.
PUBLISHED OPINION
¶ 1 Hong Mei Zhen appeals the superior court's order denying her petition for judicial review of the City of Tacoma hearing examiner's denial of her motion to set aside the hearing examiner's default order confirming the forfeiture of her money, a vehicle, and drug paraphernalia that had been seized by the Tacoma Police Department (TPD).
¶ 2 TPD confiscated Zhen's property in conjunction with a charge against her for manufacturing a controlled substance. TPD mailed a notice of seizure and intended forfeiture of the property to Zhen. However, the notice was returned to TPD as undeliverable. TPD made no further efforts to provide notice to Zhen, even after Zhen twice came to TPD to inquire about her property and provided TPD with a new address.
¶ 3 The hearing examiner subsequently entered a default order confirming forfeiture of the items seized. TPD mailed a notice of the forfeiture order to Zhen at her new address. However, the notice did not inform Zhen of her right to move to set aside the default order or to petition for judicial review. Months later, Zhen filed a motion to set aside the default order based on a violation of due process. The hearing examiner denied the motion. Zhen petitioned for judicial review in the superior court under the Administrative Procedures Act (APA), chapter 34.05 RCW, and the superior court affirmed the hearing examiner.
¶ 4 We hold that (1) TPD violated Zhen's due process rights by not attempting to provide her with notice after the first notice was returned as undeliverable; (2) the forfeiture default order violated RCW 34.05.461(3) by failing to inform Zhen of her right under the APA to move to set aside the default order or to file a petition for judicial review of the default order; and (3) because of the due process and statutory violations, Zhen's motion to set aside the default order was not barred even though she did not file the motion within the statutory time frames.1
¶ 5 Accordingly, we reverse the superior court's order dismissing Zhen's petition for judicial review and remand with instructions to vacate the hearing examiner's order denying Zhen's motion to set aside the default order and to refer the case to the hearing examiner for further proceedings.
¶ 6 On June 18, 2018, TPD confiscated over $51,000 in cash, jewelry, a 2008 Honda Odyssey, and drug paraphernalia that belonged to Zhen. Zhen was charged with unlawful manufacture of a controlled substance. On June 19, the superior court released Zhen from custody subject to certain conditions of release. Among these conditions, the court prohibited Zhen from living at an address on E. 48th Street in Tacoma.
¶ 7 On June 28, TPD sent to Zhen a notice of seizure and intended forfeiture of her property to the E. 48th Street address by way of regular and certified mail. The notice stated that Zhen had the right to a civil hearing regarding the seizure and forfeiture if she notified TPD within 45 days of the receipt of notice. At that time, the E. 48th Street address was listed for Zhen on her Department of Licensing (DOL) records, the registration records for her seized vehicle, and the Pierce County Jail's corrections data records.
¶ 8 Both the regular and certified mailings were returned to TPD as "not deliverable as addressed" and "unable to forward." Clerk's Papers (CP) at 37-38. There is no indication in the record that Zhen received TPD's notice of TPD's seizure and intended forfeiture. Zhen failed to respond to TPD in writing within the 45-day period stated in the notice.
¶ 9 On September 11, Zhen visited TPD and spoke with Officer Eric Robison. Zhen sought to retrieve her vehicle as well as the money and jewelry that had been confiscated. Robison told her that the vehicle and the money had been seized. Zhen stated that she had not received any paperwork. Zhen provided Robison with a different address in Seattle than the one to which TPD had mailed notice. TPD did not inform Zhen at that visit that a forfeiture proceeding was pending and did not send notice of the forfeiture to the new address.
¶ 10 Within two weeks before October 29, Zhen returned to TPD and talked with Officer G. Benjamin about retrieving her money and jewelry. Robison told Benjamin to inform Zhen that TPD had seized the money, but that she could claim the jewelry and TPD would give it back. Again, TPD did not inform Zhen that a forfeiture proceeding was pending.
¶ 11 On October 29, Robison conducted a follow-up investigation and discovered several additional addresses for Zhen. He learned that Zhen had updated her address with the DOL to another address in Seattle. The record shows that Zhen was issued a driver's license with that address on July 11, 2018. TPD did not attempt to mail a notice of the forfeiture to any additional address.
¶ 12 Also on October 29, TPD attorney Keith Echterling twice spoke with Zhen's criminal defense attorney. Echterling informed the attorney that TPD was seeking forfeiture of Zhen's vehicle and money, that the notices TPD sent had been returned, and that he intended to file a default motion. The attorney responded that he only represented Zhen in her criminal case. Echterling did not ask the attorney to inform Zhen that a forfeiture proceeding was pending or ask for a current address for Zhen.
¶ 13 On November 5, TPD filed an ex parte motion with the hearing examiner for a default order confirming forfeiture of Zhen's money, vehicle, and drug paraphernalia. On November 6, the hearing examiner entered the default order confirming the forfeiture.
¶ 14 On November 8, TPD sent Zhen notice of the default order at the address in Seattle that Zhen provided. The notice was in English without a Mandarin translation. The notice provided, "Enclosed please find your signed copy of the Order Confirming Forfeiture in the above matter" and stated that Zhen should contact Echterling with any questions. CP at 69. The notice did not advise Zhen that under the APA she could file a motion to set aside the default order or that she could appeal the default order.
¶ 15 On May 6, 2019, almost six months after the hearing examiner's default order, Zhen filed a motion to set aside the default order. She argued that service of the notice of seizure and intended forfeiture was deficient and that TPD violated due process because the notice was not reasonably calculated to apprise her of the forfeiture. In her reply, Zhen argued that the notice of the default order was deficient because the notice did not contain instructions on how to challenge the order and the notice was not translated into Mandarin.
¶ 16 The hearing examiner denied Zhen's motion. The hearing examiner ruled that TPD complied with the statutory notice and service requirements, and concluded that he did not have authority to address constitutional arguments. The hearing examiner also stated that Zhen's failure to file a motion to set aside the default order within seven days after entry of the order precluded his consideration of the motion.
¶ 17 Zhen filed a timely petition for judicial review under the APA with the superior court, seeking reversal of the hearing examiner's order denying her motion to set aside the default order confirming forfeiture. The superior court entered an order denying Zhen's request to withdraw the default order.
¶ 18 Zhen appeals the superior court's order affirming the hearings examiner's denial of her motion to set aside the default order.
¶ 19 The APA governs our review of administrative decisions in forfeiture proceedings. RCW 69.50.505(5) ; City of Sunnyside v. Gonzalez , 188 Wash.2d 600, 608, 398 P.3d 1078 (2017). We review the hearing examiner's decision, not the superior court's decision. Gonzalez , 188 Wash.2d at 608, 398 P.3d 1078.
¶ 20 Under the APA, we may grant relief from the hearing examiner's order based on one of nine reasons listed in RCW 34.05.570(3). Grounds for relief include that the order is in violation of constitutional provisions and that the agency failed to follow a prescribed procedure. RCW 34.05.570(3)(a), (c). The person challenging the order has the burden of demonstrating the invalidity of that decision. RCW 34.05.570(1)(a). In addition, the challenging person is entitled to relief only if the order has substantially prejudiced that person. RCW 34.05.570(1)(d).
¶ 21 We may grant relief from an agency order in an adjudicative proceeding for a violation of due process under RCW 34.05.570(3)(c) where "[t]he agency has engaged in unlawful procedure or decision-making process." We review constitutional questions and an agency's application of the law de novo. See Cornelius v. Dep't of Ecology , 182 Wash.2d 574, 585, 344 P.3d 199 (2015).
¶ 22 Zhen argues that TPD did not provide her with constitutionally sufficient notice of the forfeiture because the notice TPD mailed was returned as undeliverable, and TPD made no further attempts to provide notice to...
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