Olympic Peninsula Narcotics Enforcement Team v. Junction City Lots 1 Through 12 Inclusive, Block 35 , 191 Wash. 2d 654 ( 2018 )

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SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
THE OLYMPIC PENINSULA
NARCOTICS ENFORCEMENT TEAM;
BILL BENEDICT,CLALLAM COUNTY
SHERIFF; CLALLAM COUNTY
SHERIFF'S OFFICE; and
CLALLAM COUNTY,
Respondents, No. 95013-0
EN BANC
REAL PROPERTY KNOWN AS
(1)JUNCTION CITY LOTS 1 THROUGH
12 INCLUSIVE,BLOCK 35, Filed: SEP 0 6
(2)LOT 2 OF THE NELSON SHORT
PLAT LOCATED IN JEFFERSON
COUNTY,AND ALL APPURTENANCES
AND IMPROVEMENTS THEREON,OR
PROCEEDS THEREFROM,
Defendant,
STEVEN L. FAGER;DBVWC,INC., a
Washington corporation; and the LUCILLE
M. BROWN LIVING TRUST,
Petitioners.
Olympic Peninsula Narcotics Enf't Team v. Junction City Lots 1 through 12 Inclusive,
No. 95013-0
YU,J.— This case involves Washington's civil forfeiture statute and the
scope of the attorney fees provision where the claimant is the substantially
prevailing party. The forfeiture statute allows law enforcement agencies to seize
and take ownership of property that has a sufficient factual nexus to certain
controlled substance violations. RCW 69.50.505. However, if someone claims the
property and law enforcement cannot prove that forfeiture is authorized, then the
claimant is entitled to have the property returned and to receive "reasonable
attorneys' fees reasonably incurred by the claimant." Id. at (6). We are presented
with two issues of first impression regarding this attorney fees provision.
First, we are asked who qualifies as a "claimant" when the property at issue
is owned by a corporation. We hold that in such a case, a corporate shareholder
who did not file any claim in the forfeiture case is not a claimant and therefore
cannot recover attorney fees pursuant to the statute's plain language. We thus
affirm the Court of Appeals in part.
Second, we must decide whether a substantially prevailing claimant's fee
award is strictly limited to fees incurred in the forfeiture proceeding itself. The
answer is no. The plain language of RCW 69.50.505(6) gives courts discretion to
award the claimant attorney fees from a related criminal case if the fees were
reasonably incurred for the primary purpose of resisting civil forfeiture. We
Olympic Peninsula Narcotics Enf't Team v. Junction City Lots 1 through 12 Inclusive,
No. 95013-0
therefore reverse the Court of Appeals in part and remand to the trial court to enter
a corrected fee award consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Beginning in 2007,the Olympic Peninsula Narcotics Enforcement Team
(OPNET)became suspicious that brothers Steven and Timothy Eager' were
growing and distributing marijuana from a commercial building at 115 Freeman
Lane in Port Townsend. OPNET officers conducted surveillance and, in 2009,
obtained a warrant for a thermal image search, based on allegations that they could
smell marijuana from the street and that the smell was coming from the 115
Freeman Lane building.
Based on the results ofthe thermal image search, OPNET obtained a search
warrant for the 115 Freeman Lane building and "discovered a large, sophisticated,
indoor marijuana growing operation." Clerk's Papers(CP)at 19. The next day,
the Pagers were each charged with one count of manufacturing marijuana and one
count of possession with intent to deliver marijuana. The criminal cases against
the Pagers were consolidated.
On the same day that the criminal charges were filed, OPNET,the Clallam
County sheriff, and Clallam County brought this civil forfeiture case against the
'For clarity, we refer to the brothers collectively as "the Fagers" and individually as
"Steven" and "Timothy."
Olympic Peninsula Narcotics Enf't Team v. Junction City Lots 1 through 12 Inclusive,
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two parcels of real property on which the 115 Freeman Lane building is loeated.
One parcel belongs to Steven and the other belongs to a corporation, Discovery
Bay Village Wellness Collective(DBVWC).^ Steven is the president and
registered agent for DBVWC,and the Pagers are both shareholders.
Jeffrey Steinbom timely entered a notice of appearance in the forfeiture case
as "Attorney for Claimant Steven Fager." Id. at 31. In January 2010,the parties
entered an agreed order staying the forfeiture case pending the outcome of the
consolidated criminal cases, which took several more years to resolve.
In their criminal cases, the Pagers moved to suppress the evidence OPNET
obtained from searching the 115 Freeman Lane building. After a lengthy hearing,
the trial court granted the motion, crediting unrebutted expert testimony "that it
would have been impossible for the officers to smell the marijuana" from the
distance at which they claimed to smell it. Id. at 80. The court also determined
that the officers' statements "demonstrate[d] a reckless disregard for the truth" and
must be suppressed. Id. at 81.
Without those statements, there was no probable cause for the search
warrant, and the court therefore suppressed "[a]11 evidence procured as a result."
Id. at 84. The trial court then dismissed the criminal cases with prejudice, and the
^ The"WC"in DBVWC is variously referred to as standing for "Water Company" and
"Wellness Collective." E.g., CP at 19, 52. We defer to the trial court's findings of fact, which
use "Wellness Collective." Id. at 546.
Olympic Peninsula Narcotics Enft Team v. Junction City Lots 1 through 12 Inclusive,
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Court of Appeals affirmed. State v. Eager, No. 44454-2-II(Wash. Ct. App. Feb.
10, 2015)(unpublished), bttp://www.courts.wa.gov/opinions/pdf/D2%2044454-2-
II%20%20Unpublisbed%200pinion.pdf. The State did not seek further review,
and the mandate issued on April 8, 2015.
Two and a half weeks later, James R. Dixon entered a notice of appearance
in the forfeiture proceeding as "Substitution Counsel for Steve Fager." CP at 46.
That same day,"Steven Fager and the Discovery Bay Village Wellness Collective"
moved for summary judgment. M at 52. OPNET did not respond. Instead,
OPNET released its lis pendens and filed a motion for voluntary dismissal pursuant
to CR 41(a)(1)(B). The parties agreed that voluntary dismissal should be granted
and that the summary judgment motion was moot. However, OPNET would not
stipulate to a dismissal that included any attorney fee award, so Steven filed a
separate motion for attorney fees.
The trial court dismissed the forfeiture case and awarded the Fagers the
attorney fees incurred in the forfeiture case, as well as some of the fees incurred in
the Fagers' criminal cases. The Fagers did not request, and the court did not
award, all of their criminal defense fees, however. Instead, the court awarded fees
only "where the primary purpose behind the incurred fees was to prevent the
forfeiture." Id. at 540. On OPNET's request for clarification, the court confirmed
that it was awarding fees to both Steven and Timothy because Timothy is "a part
Olympic Peninsula Narcotics Enf't Team v. Junction City Lots 1 through 12 Inclusive,
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owner of DBVWC,Inc." Excerpt of Proceedings of Audio Verbatim Tr.(Aug. 5,
2015)(RP)at 67.
OPNET appealed. In an unpublished decision, the Court of Appeals,
Division One, held that RCW 69.50.505(6) did not authorize the trial court to
consider "factors unrelated to the civil forfeiture proceeding," such as '"the way in
which the State approached the criminal case,'" in awarding attorney fees.
Olympic Peninsula Narcotics Enf't Team v. Junction City Lots 1 through 12
Inclusive, No. 75635-4-1, slip op. at 14-15 (Wash. Ct. App. May 22, 2017)
(unpublished)(OPNET)(underlining omitted), http://www.courts.wa.gov/opinions/
pdf/756354.pdf. It also held that Steven appeared in the forfeiture proceeding only
in his individual capacity and that DBVWC and Timothy never appeared at all, so
Timothy could not be a claimant entitled to attorney fees. The Court of Appeals
therefore affirmed in part, reversed in part, and remanded for the trial court to enter
a corrected fee award as to Steven. We granted the Pagers' petition for review.
ISSUES
A. Is Timothy a substantially prevailing claimant entitled to attorney fees
in the forfeiture case?
B. Does RCW 69.50.505(6) give courts discretion to award attorney fees
that a substantially prevailing claimant incurred in a related criminal proceeding
for the purpose of resisting forfeiture?
Olympic Peninsula Narcotics Enf't Team v. Junction City Lots 1 through 12 Inclusive,
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C. Are the Fagers entitled to attorney fees incurred on review in this
court?
ANALYSIS
In Washington,"a court may award [attorney] fees only when doing so is
authorized by a contract provision, a statute, or a recognized ground in equity."
King County v. Vinci Constr. Grands Projets/Parsons RCI/Frontier-Kemper, JV,
188 Wn.2d 618, 625, 398 P.3d 1093 (2017). The only basis asserted for attorney
fees in this case is a statute, RCW 69.50.505(6). Attorney fee awards are reviewed
for abuse of discretion. Guillen v. Contreras, 169 Wn.2d 769, 774, 238 P.3d 1168(2010). However, the underlying question of which fees may be awarded pursuant
to the statute is a question oflaw reviewed de novo. Id.In this case, OPNET did not waive or forfeit its argument that Timothy is not
a claimant, and the record clearly shows that he is not. His status as a shareholder
in DBVWC,a distinct corporate entity, does not make him a claimant. We
therefore affirm the Court of Appeals in part and remand to the trial court to
exclude from its fee award the fees that Timothy incurred in his criminal case.
We further hold that RCW 69.50.505(6) gives courts discretion to award
attorney fees that a substantially prevailing claimant reasonably incurred in a
related criminal case for the primary purpose of avoiding civil forfeiture. Here, the
trial court properly exercised its discretion to award some of Steven's criminal
Olympic Peninsula Narcotics Enf't Team v. Junction City Lots 1 through 12 Inclusive,
No. 95013-0
defense fees when he prevailed in the civil forfeiture case. We therefore reverse
the Court of Appeals on this issue.^
Finally, we award Steven the attorney fees he incurred on review in this
court as to the second issue, on which he substantially prevails.
A. Timothy's criminal defense fees cannot be awarded because he is not a
claimant
As discussed further below, the trial court properly awarded some of
Steven's criminal defense fees in this case. However, we affirm the Court of
Appeals' holding that Timothy's criminal defense fees must be excluded from the
fee award.
The Fagers initially contend that OPNET forfeited or waived this issue by
failing to raise it in a timely manner. However, OPNET did raise concerns about
Timothy's status as a claimant before the trial court entered its findings offact,
conclusions oflaw, and order, both at oral argument and in its written briefing. RP
at 43, 67; CP at 522-24. The Fagers responded on the merits, and the trial court
^ The parties read the Court of Appeals' opinion as agreeing with OPNET that trial courts
do not have any discretion to award related criminal defense fees in a civil forfeiture case. See
OPNET,No. 75635-4-1, slip op. at 14-15. Amicus, however, contends that the Court of Appeals
held just the opposite. Amicus Curiae Br. of Wash. Ass'n of Criminal Defense Lawyers at 2-7.
We agree with the parties' reading hecause the Court of Appeals denied the Fagers' motion for
reconsideration or clarification on that very issue and only the Fagers sought this court's review
as aggrieved parties. See RAP 3.1.
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decided the issue in their favor. RP at 43-44, 67; CP at 527, 529-30. We likewise
address the merits of this issue on review.
RCW 69.50.505(6) explicitly allows courts to award fees "reasonably
incurred by the claimant." A "claimant" in a civil forfeiture case is "any person
[who] notifies the seizing law enforcement agency in writing ofthe person's claim
of ownership or right to possession of the property within the statutory time limit.
RCW 69.50.505(5). Timothy did not do that in this case.
Timothy argues that his duty to notify OPNET in writing was never
triggered because OPNET never served him with notice of the intended forfeiture.
OPNET contends it had no duty to serve Timothy because its "title search did not
identify Timothy Eager as having a known interest in the real property." Suppl.
Briefing under RAP 13.7(d) at 15-16. We decline to resolve this dispute because it
is unnecessary. Timothy cannot be a claimant in this case as a matter oflaw.
Steven owns one parcel ofthe real property at issue and DBVWC,a
corporation, owns the other."^ "[A] corporation's shareholders have no property
interest in that corporation's physical assets because corporations are separate
OPNET conceded at oral argument that Steven "was acting as the representative for"
DBVWC in the forfeiture case, so DBVWC and Steven are both prevailing claimants. Wash.
Supreme Court oral argument, Olympic Peninsula Narcotics Enf't Team v. Junction City Lots
1 through 12 Inclusive, No. 95013-0(June 1.2, 2018), at 18 min., 16 sec., video recording by
TVW, Washington State's Public Affairs Network, http://www.tvw.org. Contra OPNET,No.
75635-4-1, slip op. at 11-12. In light of OPNET's concession, this opinion does not distinguish
between Steven's and DBVWC's entitlement to attorney fees.
Olvmpic Peninsula Narcotics Enf't Team v. Junction City Lots 1 through 12 Inclusive,
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organizations with different privileges and liabilities from shareholders." Nw.
Cascade, Inc. v. Unique Constr., Inc., 187 Wn. App. 685, 702, 351 P.3d 172(2015)(citing Christensen v. Skagit County, 66 Wn.2d 95, 97, 401 P.2d 335(1965)). We do not doubt that as a shareholder in DBVWC,Timothy is financially
interested in the outcome of the forfeiture case. But a claim of financial interest in
the outcome is not a "claim of ownership or right to possession of the real
property. RCW 69.50.505(5). Timothy is therefore not a claimant.
RCW 69.50.505(6) explicitly limits the attorney fees that may be awarded to
fees "incurred by the claimant." Steven and DBVWC are the only claimants in this
forfeiture case, and there is no suggestion that they incurred Timothy's criminal
defense attorney fees. Therefore, those fees may not be awarded.
B. RCW 69.50.505(6) gives courts discretion to award attorney fees that a
claimant reasonably incurs in a criminal case for the purpose of prevailing in
a related civil forfeiture case
Washington is one ofthe few jurisdictions that provides for mandatory
attorney fee awards to prevailing claimants in civil forfeiture cases: "In any
proceeding to forfeit property under this title, where the claimant substantially
prevails, the claimant is entitled to reasonable attorneys' fees reasonably incurred
by the claimant."^ RCW 69.50.505(6). The parties dispute whether, and to what
^ See also 28 U.S.C. § 2465(b)(1); lowA Code § 809A.12(7); Or. Rev. Stat.
§ 131A.310(1); Utah Code § 24-4-110(l)(b); Va. Code § 19.2-386.12(6); Wyo. Stat. § 35-7-
1049(p)(i).
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extent, there are limitations on the fees that may be awarded pursuant to this
provision. OPNET contends that claimants may recover attorney fees incurred
only in the civil forfeiture case itself, under that specific cause number, while the
Pagers contend that courts have discretion to award claimants fees reasonably
incurred in a related criminal case for the primary purpose of ensuring the
claimant's success in the forfeiture case. We agree with the Pagers.
When interpreting statutes, our task is always to give effect to the
legislature's intent. Dep't ofEcology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9,
43 P.3d 4(2002). The legislature's intent in enacting RCW 69.50.505(6) was "to
protect individuals against having their property wrongfully taken by the State."
Guillen, 169 Wn.2d at 776. To effect this intent, courts should look at the purpose
of the work underlying the fees incurred and ask whether the attorney's work was
directly related to the forfeiture proceedings even if it was not the same cause
number. The trial court in this case thus properly exercised its discretion when it
awarded Steven some ofthe attorney fees he incurred in his criminal case because
it found those fees were factually connected and reasonably incurred for the
primary purpose of prevailing in the forfeiture case.
We have already once interpreted RCW 69.50.505(6) as requiring courts to
take a purpose-based approach to fees in civil forfeiture cases. In Guillen, we held
that a partially prevailing claimant is entitled only to partial attorney fees,
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reasoning that the legislature did not "intend for claimants to recover fees and costs
incurred solely for unsuccessful claims." Id. at 780. This reasoning directs courts
to award fees based not on cause number but on whether the fees were reasonably
incurred for the purpose of ensuring the success that the claimant actually
achieved.
We decline to confine Guillen's, reasoning to cases where it works to the
claimant's detriment. Just as a partially prevailing claimant is entitled to only
partial attorney fees, we hold that a fully prevailing claimant is entitled to the full
amount of attorney fees reasonably incurred for the claimant to succeed. This is
the only approach that accounts for all ofthe statutory language, gives that
language the liberal interpretation required, and reflects the realities presented in
the context of civil forfeiture.
When interpreting statutes, we have a duty '"to give effect to all language,
so as to render no portion meaningless or superfluous.'" State v. Ervin, 169 Wn.2d
815, 823, 239 P.3d 354(2010){cyaoCmg Rivard v. State, 168 Wn.2d 775, 783, 231
P.3d 186 (2010)). If fee awards pursuant to RCW 69.50.505(6) were limited based
strictly on the cause number, as OPNET contends they should be, then the statute
could just as easily read,"In any proceeding to forfeit property under this title,
where the claimant substantially prevails, the claimant is entitled to reasonable
attorneys' fees." We cannot ignore the legislature's decision to specifically
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include additional language without limitation that allows for the award offees
"reasonably incurred by the elaimant." RCW 69.50.505(6).
OPNET suggests that its interpretation would not render "reasonably
incurred by the claimant" meaningless because that phrase should be interpreted as
an additional limit on a claimant's right to recover fees:
[T]he legislature was setting out two separate reasonable standards.
The first one ["reasonable attorneys' fees"] is whether the attorney
was charging a reasonable rate, whether it was a reasonable fee for
that attorney's work in the civil forfeiture proceeding. And then the
"reasonably incurred" language is for the actual work within the civil
forfeiture proceeding that was—led to a successful [claim] under that
statute.
Wash. Supreme Court oral argument, Olympic Peninsula Narcotics Enf't Team v.
Junction City Lots 1 through 12 Inclusive, No. 95013-0 (June 12, 2018), at 27
min., 31 sec., video recording by TVW,Washington State's Public Affairs
Network, http://www.tvw.org. This is a dubious proposition because work that did
not lead to a successful claim is already excluded by the statute's reference to
"reasonable attorneys' fees." RCW 69.50.505(6); see Guillen, 169 Wn.2d at 780.
More troublingly, this interpretation relies on federal case law that "'strictly'"
interprets the attorney fees provision in a federal civil forfeiture statute. United
States V. 317 NickFitchardRd. Nw., 579 F.3d 1315, 1320(11th Cir. 2009)
Ruckelshaus V. Sierra Club, 463 U.S. 680, 685, 103 S. Ct. 3274, 77
L.Ed. 2d938 (1983)).
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Our precedent precludes such a strict interpretation, directing us instead to
interpret ROW 69.50.505(6) liberally in favor ofthe claimant's right to recover
fees. Guillen, 169 Wn.2d at 777-78. Liberally reading the phrase "reasonably
incurred by the claimant" leads us to conclude that the legislature intended to make
it clear that a court's guiding inquiry in awarding attorney fees incurred by a
prevailing claimant is the fees' purpose and reasonableness. RCW 69.50.505(6).
In the context of civil forfeiture, neither purpose nor reasonableness can be
determined by cause number alone. Courts must instead account for the
"pragmatic" considerations presented by such cases. Guillen, 169 Wn.2d at 778;
of. Pennsylvania v. Del. Valley Citizens' Councilfor Clean Air, 478 U.S. 546, 558,
106 S. Ct. 3088, 92 L. Ed. 2d 439(1986)(awarding fees that were "necessary to
the attainment of adequate relief," even though the fees were incurred before the •
litigation officially began).
It is certainly true that civil forfeiture and criminal cases are separate
proceedings and that civil forfeiture is not technically a criminal penalty. United
States V. Ursery, 518 U.S. 267, 292, 116 S. Ct. 2135, 135 L. Ed. 2d 549(1996).
But forfeiture as a civil matter derives from a "'legal fiction'" that "'[i]t is the
property which is proceeded against, and . . . held guilty and condenmed as though
it were conscious instead of inanimate and insentient.'" Id. at 275 (emphasis
added)(quoting Various Items ofPers. Prop. v. United States, 282 U.S. 577, 581,
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Olympic Peninsula Narcotics Enf't Team v. Junction City Lots 1 through 12 Inclusive,
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51 S. Ct. 282, 75 L. Ed. 558 (1931)). This legal fiction prevents courts from
applying constitutional rules that "are expressly limited to criminal cases" in civil
forfeiture cases. Austin v. United States, 509 U.S. 602, 607, 113 S. Ct. 2801, 125
L. Ed. 2d 488 (1993). But it does not require courts to ignore the fact that with the
enactment of RCW 69.50.505, the legislature "has chosen to tie forfeiture directly
to the commission of drug offenses." Id. at 620.
The connection between criminal and civil forfeiture cases is most clearly
pronounced in situations like this one, where both cases are based on the same
underlying offense, allegedly committed by the property's owner and claimant. In
each case, the government must prove the same offense was committed, and the
same person will be defending against the same charges based on the same
evidence. It is therefore entirely unsurprising that much of the legal work done in
one case will directly benefit the other. Performing such legal work under the
cause number for the criminal case will sometimes be the most reasonable course
of action in order to prevail in the forfeiture case. Fees for that work may be
awarded pursuant to RCW 69.50.505(6), which clearly does not require courts to
diminish a prevailing claimant's entitlement to attorney fees just because the
claimant acted reasonably.
The facts presented here well illustrate the reasonableness of performing
legal work in a criminal case to benefit a forfeiture claimant. Steven was charged
- 15
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in his criminal case on the same day that OPNET filed its civil forfeiture
eomplaint. He was thus left with three options: stay the forfeiture case pending the
criminal case, stay the criminal case pending the forfeiture case, or litigate both
eases at the same time. Steven chose the first strategy, and OPNET agreed to stay
the forfeiture case. The trial court found that Steven pursued this strategy for the
primary, subjective purpose of prevailing in the forfeiture case, noting the high
value of the real property at issue in eomparison to the relatively small impact that
a criminal conviction would have on Steven's interests.
The eourt further found that Steven's strategy was objectively reasonable
based on the circumstances presented. Indeed, in many circumstanees, staying the
forfeiture case pending the criminal case may be the most(and possibly only)
reasonable option. Any other strategy (staying the criminal case pending the civil
forfeiture or litigating both eases at the same time) may require a person to forfeit
important constitutional rights that he or she is entitled to as a criminal defendant,
including the right to a speedy trial and the right against self-incrimination.
Const, art. I, §§ 22, 9; Austin, 509 U.S. at 607(constitutional rules that "are
expressly limited to criminal cases" do not apply in civil forfeiture cases). It would
also be an extremely inefficient use of resources for all parties involved. By
litigating the criminal case first, however, Steven was able to pursue a successful
suppression motion with preclusive effeet in the forfeiture ease, leading direetly to
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the dismissal of both cases without duplicative litigation or forfeiture of Steven's
constitutional rights.
Steven thus reasonably incurred some attorney fees in his criminal case for
the primary purpose of prevailing in the forfeiture case. Denying his right to
recover those fees based solely on cause number would elevate form over
substance and would fail to make Steven whole, even though he wholly prevailed.
We therefore hold that the trial court properly exercised its discretion to award
Steven some of his criminal defense attorney fees in accordance with RCW
69.50.505(6).
C. Steven is entitled to partial attorney fees on review
The Pagers requested attorney fees on review in their Court of Appeals brief,
and "[rjequests made at the Court of Appeals will be considered as continuing
requests at the Supreme Court." RAP 18.1(b). As discussed above, Steven
prevails on the second issue presented, but not the first. He is therefore entitled to
the attorney fees he reasonably incurred on this court's review of the second issue.
RCW 69.50.505(6); RAP 18.1(a); Guillen, 169 Wn.2d at 780.
CONCLUSION
RCW 69.50.505(6) requires courts to award attorney fees to substantially
prevailing claimants and gives them discretion to determine which fees were
"reasonably incurred." The statute's plain language does not indicate that courts
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should limit their inquiry into reasonableness based on cause number. The trial
court here properly considered all the fees reasonably incurred by Steven Fager
when be prevailed as a claimant in the civil forfeiture case. However, because
Timothy Fager is not a claimant, the attorney fees be incurred in bis criminal case
were not incurred "by a claimant" and cannot be awarded in accordance with the
statute's plain language. We therefore affirm in part and reverse in part the Court
of Appeals and remand for the trial court to enter a corrected fee award consistent
with this opinion.
18
OPNET, etal. v. Real Prop., No. 95013-0
WE CONCUR:
19
Opnet, et al. v. Real Prop.
No. 95013-0
GonzAlez, J.(dissenting)—^The civil forfeiture statute does not authorize
attorney fees incurred in a criminal case to be awarded in a forfeiture proceeding.
To the extent the majority holds otherwise, I respectfully dissent.
The legislature made its intent plain. "In any proceeding to forfeit property
under this title, where the claimant substantially prevails, the claimant is entitled to
reasonable attorneys' fees reasonably incurred by the claimant." RCW
69.50.505(6). This statute explicitly limits attorney fees to "any proceeding to
forfeit property under this title." Attorney fees were meant to be limited to civil
forfeiture proceedings under Title 69 RCW. See State v. Catlett, 133 Wn.2d 355,
366-67, 945 P.2d 700(1997)("Seizure and forfeiture are civil processes and are
independent ofthe outcome of any criminal charges that might be brought against
the owner ofthe property."(quoting Final Legislative Report, 51st Leg., at 119
(Wash. 1989))). I recognize that in Guillen v. Contreras, we read this statute
liberally. 169 Wn.2d 769, 778, 238 P.3d 1168 (2010). But liberal interpretation
Opnet, et al. v. Real Prop., No. 95013-0 (Gonzalez, J., dissenting)
does not, and cannot, override the explicit limitation of attorney fee recovery to
"any proceeding to forfeit property."
The issue before us is a matter of form, not substance. majority at 17.
The civil forfeiture and criminal case are factually and legally two separate
proceedings. They involve different parties and different interests. The legislature
limited attorney fees to the civil forfeiture case. Contrary to the majority's
assertion, RCW 69.50.505(6)'s "reasonably incurred" does not change the meaning
of"any proceeding to forfeit property" to "any proceeding to forfeit property and
any connected proceedings."
In each proceeding, Steven Fager faced different adversaries: the Olympic
Peninsula Narcotics Enforcement Team in the forfeiture proceeding and the State
of Washington in the criminal case. See Clerk's Papers at 305-06. He is entitled to
an award of"reasonable attorneys' fees reasonably incurred" in the civil forfeiture
proceeding only. RCW 69.50.505(6). I respectfully dissent.
Opnet, et al. v. Real Prop., No. 95013-0(Gonzalez, J., dissenting)
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