Tellevik v. Real Property Known as 31641 West Rutherford Street, Located in City of Carnation, Wash., and All Appurtenances and Improvements Thereon
| Decision Date | 15 October 1992 |
| Docket Number | Nos. 57566-5,57763-3,s. 57566-5 |
| Parties | , 61 USLW 2272 George B. TELLEVIK, Chief, Washington State Patrol, and Gregory J. Webb, Chief, Carnation Police Department, Appellants, v. REAL PROPERTY KNOWN AS 31641 WEST RUTHERFORD STREET, LOCATED IN THE CITY OF CARNATION, WASHINGTON, AND ALL APPURTENANCES AND IMPROVEMENTS THEREON; Donald W. Pearson and Janet A. Pearson, husband and wife, Respondents. George B. TELLEVIK, Chief, Washington State Patrol, and James I. Scharf, Sheriff, Snohomish County, Appellants, v. 9209 218TH, N.E., REDMOND, KING COUNTY, AND ALL APPURTENANCES AND IMPROVEMENTS THEREON; Charles L. Wilson and Janet L. Wilson, husband and wife; Richard Llewelyn Jones, P.S.; and Richard J. Troberman, P.S., Respondents. |
| Court | Washington Supreme Court |
Kenneth O. Eikenberry, Atty. Gen., Roselyn Marcus, Asst., Olympia, Driano & Sorenson, Dominick V. Driano, Seattle, Seth R. Dawson, Snohomish County Prosecutor, John Stansell, Deputy, Everett, for appellants the State, Webb and Scharf.
Richard J. Troberman, Seattle, for respondents Real Property, et al.
George L. Bianchi, Seattle, for respondent Pearson.
Plaintiffs in both these consolidated cases appeal from trial court decisions which held RCW 69.50.505(b), authorizing the seizure of real property subject to forfeiture, is unconstitutional on its face and as applied to seizure of a private residence and residential rental property. The trial courts reached these conclusions by ruling the statute fails to provide minimal due process safeguards under the United States and Washington State Constitutions.
In addition, the plaintiffs in Tellevik v. 9209 218th, N.E. appeal the trial court's decision interpreting RCW 69.50.505(a)(8) as requiring a present use of real property violating the statute in order to permit a seizure. The plaintiffs in Tellevik v. 31641 W. Rutherford St. appeal the trial court's grant of summary judgment and award of attorney fees in favor of defendant Janet Pearson and the denial of plaintiffs' CR 56(f) motion.
On October 27, 1989, the Snohomish County Regional Narcotics Task Force and the Eastside Narcotics Task Force executed a search warrant on residential real property located at 9209 218th, N.E. in Redmond. The owners and occupants of the residence, Charles L. Wilson and Janet L. Wilson (defendants), were present during the search. The officers found a marijuana grow operation, consisting of 3 rooms and approximately 60 mature plants and 70 starter plants, in the "crawl space" beneath the first floor of the residence. There is no allegation the search warrant was improperly obtained or executed.
On April 6, 1990, Charles Wilson pleaded guilty to possession of marijuana with intent to manufacture in violation of RCW 69.50.401(a); charges against Janet Wilson were dismissed.
On May 15, 1990, George B. Tellevik, Chief of the Washington State Patrol, and James I. Scharf, Sheriff of Snohomish County (plaintiffs), applied ex parte for a warrant of arrest in rem, although the defendants assert plaintiffs knew they were represented by counsel. On May 21, 1990, after the trial court orally informed the plaintiffs it would not issue the warrant, they filed a complaint for forfeiture in rem and a lis pendens.
On May 25, 1990, the trial court issued its written order denying issuance of the warrant. The court interpreted RCW 69.50.505(a)(8) as permitting a seizure only when the property is "currently being used in violation of RCW 69.50.505(a)(8)." The motion for reconsideration was denied.
On July 5, 1990, plaintiffs filed a motion for discretionary review of the trial court order. On July 16, 1990, the defendants moved to dismiss the complaint for forfeiture in rem, but these proceedings were stayed pending resolution of review in the appellate court. On August 3, 1990, defendants filed a cross motion for discretionary review of the trial court order challenging the constitutionality of the statute. The Court of Appeals denied both motions for discretionary review.
On October 2, 1990, an agreed order was entered setting aside the stay, and defendants refiled their motion to dismiss the complaint for forfeiture in rem, asserting (1) the court lacked jurisdiction over the property because it was never seized, and (2) the statute was unconstitutional on its face and as applied. On November 1, 1990, the trial court granted the motion to dismiss on both grounds. The court also released the lis pendens. Plaintiffs appealed.
On September 26, 1989, the Eastside Drug Task Force executed a search warrant on the residential real property located at 31641 West Rutherford Street in Carnation. The residence was used as a rental property by its owners, Donald W. Pearson and Janet A. Pearson. Upon execution of the warrant, the officers found a marijuana grow operation, consisting of 3 rooms of equipment and approximately 40 marijuana plants, in the basement of the house which had been modified to provide access through a trap door. Donald Pearson was present in the residence during the execution of the warrant and taken into custody. Subsequently, Mr. Pearson and the renter of the property pleaded guilty to possession with intent to manufacture marijuana, in violation of RCW 69.50.401(a). As in the prior case, there is no allegation the search warrant was improperly obtained or executed.
On April 13, 1990, a complaint for forfeiture in rem was filed by plaintiff George B. Tellevik, Chief of the Washington State Patrol, against defendant real property, pursuant to RCW 69.50.505(a)(8). Gregory J. Webb, Chief of the Carnation Police Department, was later added as a party plaintiff by stipulated order. A lis pendens was also filed on the property. At an ex parte hearing, the presiding judge found probable cause to believe the defendant property was subject to forfeiture under RCW 69.50.505 and signed a warrant of arrest in rem. The judge based the finding of probable cause on the complaint for forfeiture in rem and the affidavit of one of the Carnation police officers who executed the search warrant. The summons, complaint for forfeiture in rem, lis pendens, notice of seizure and intended forfeiture, the warrant of arrest in rem, and the supporting affidavit were served on defendants Donald and Janet Pearson on April 13, 1990.
Both defendants moved to dismiss the complaint arguing RCW 69.50.505(b) is unconstitutional on its face and as applied; Janet Pearson also moved for summary judgment under the innocent owner provision of RCW 69.50.505(a)(8)(i). Plaintiffs moved for a continuance on the summary judgment motion to complete discovery, pursuant to CR 56(f).
On September 5, 1990, the trial court held the statute was unconstitutional on its face and as applied. The court (1) granted Janet Pearson's motion for summary judgment ruling there was no genuine issue of fact as to whether Mrs. Pearson was an innocent owner and plaintiffs had failed to demonstrate that further discovery would establish that she was not an innocent owner; (2) denied plaintiffs' motion for a continuance; and (3) awarded Janet Pearson attorney fees pursuant to RCW 4.84.185. The court also denied Janet Pearson's motion for an order prohibiting a forced sale of the community real property because she failed to demonstrate such a sale would work a manifest injustice. The warrant for arrest in rem was quashed and the lis pendens canceled. Plaintiffs appealed.
The first issue is whether the trial court in Tellevik v. 9209 218th, N.E. erred in holding RCW 69.50.505(a)(8) required a present illegal use in order to subject the property to seizure. Because the warrant was not sought until several months after the marijuana had been removed from the property, the court found no present use and refused to issue a warrant of arrest in rem.
RCW 69.50.505(a)(8) provides:
The following are subject to seizure and forfeiture and no property right exists in them:
. . . . .
(8) All real property, including any right, title, and interest in the whole of any lot or tract of land, and any appurtenances or improvements which are being used with the knowledge of the owner for the manufacturing, compounding, processing, delivery, importing, or exporting of any controlled substance ...
(Italics ours.)
Defendants contend the plain meaning of the language supports the trial court's interpretation and, because different language was used in subsection (a)(8) as opposed to the language in RCW 69.50.505 for other types of property--"used, or intended for use"--and as opposed to the language in the federal counterpart, 21 U.S.C. § 881(a)(7)--"which is used, or intended to be used", the Legislature must have intended a different result.
When the wording of a statute is plain and unambiguous, its meaning must be derived from the wording used. Rozner v. Bellevue, 116 Wash.2d 342, 347, 804 P.2d 24 (1991). The plain language of the statute states that "real property ... and any appurtenances or improvements which are being used with the knowledge of the owner" in violation of the statute are "subject to seizure and forfeiture and no property right exists in them". RCW 69.50.505(a)(8). The wording does not allow real property, as it does for other types of property, to be subject to seizure which is only "intended for use" in violation of the statute. Thus, the Legislature narrowed the circumstances under which real property was subject to seizure to those circumstances where it is being used with the knowledge of the owner.
The crux of this issue is whether property, which is subject to seizure and forfeiture, loses this status when illegal conduct ceases due to law enforcement intervention. In interpreting a statute, the primary goal is to promote the intent of the Legislature. Rozner, 116 Wash.2d at 348, 804 P.2d 24. The...
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