Tacoma Police Department v. Hong Mei Zhen ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
March 2, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
TACOMA POLICE DEPARTMENT, No. 54510-1-II
Respondent,
v. PUBLISHED OPINION
$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.
MAXA, J. – 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).
No. 54510-1-II
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.
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.
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
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
1
Because of our holding, we do not address Zhen’s arguments that her due process right to a
hearing was violated by the hearing examiner before entering the forfeiture default order and by
both the hearing examiner and the superior court in conjunction with her motion to set aside her
default order.
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No. 54510-1-II
motion to set aside the default order and to refer the case to the hearing examiner for further
proceedings.
FACTS
Background
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.
Notice of Seizure and Intended Forfeiture
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.
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.
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
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No. 54510-1-II
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.
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.
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.
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.
Default Order Confirming Forfeiture
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.
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No. 54510-1-II
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.
Motion to Set Aside Default Order
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.
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.
Petition for Judicial Review
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.
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No. 54510-1-II
Zhen appeals the superior court’s order affirming the hearings examiner’s denial of her
motion to set aside the default order.
ANALYSIS
A. STANDARD OF REVIEW
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.
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).
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).
B. ADEQUACY OF TPD’S NOTICE OF INTENDED FORFEITURE
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 her. We agree.
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No. 54510-1-II
1. Forfeiture Statute
RCW 69.50.505, part of the Uniform Controlled Substances Act, chapter 69.50 RCW,
“provides for forfeiture of property that is connected to an intended or completed controlled
substances violation.” Gonzalez, 188 Wash. 2d at 608. “Forfeiture is intended to deter and
penalize drug-related crimes by targeting the profits generated by the commercial production and
distribution of controlled substances.” Id.
RCW 69.50.505(3) requires a law enforcement agency under whose authority the seizure
was made to give notice of a seizure and intended forfeiture of the seized property to the owner
within 15 days following the seizure. For personal property that is not subject to a security
interest or certificate of title, the notice of seizure “may be served by any method authorized by
law or court rule including but not limited to service by certified mail with return receipt
requested.” RCW 69.50.505(3).
If no person notifies the seizing law enforcement agency in writing of a claim to
ownership or possession of the seized property within 45 days of service of notice, “the item
seized shall be deemed forfeited.” RCW 69.50.505(4). If a person notifies the agency of a claim
to ownership or possession within 45 days of service of notice, that person has a right to a
forfeiture hearing. RCW 69.50.505(5).
2. Legal Principles – Due Process
Article I, section 3 of the Washington Constitution provides that “[n]o person shall be
deprived of life, liberty, or property, without due process of law.” The Fourth and Fourteenth
Amendments to the United States Constitution contain similar provisions. Our Supreme Court
has recognized that in forfeiture cases, “due process generally affords an individual notice and an
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No. 54510-1-II
opportunity to be heard.” Tellevik v. Real Prop. Known as 31641 West Rutherford Street, 125
Wash. 2d 364, 370-71, 884 P.2d 1319 (1994).
Specific to adequacy of notice, the United States Supreme Court stated that “[a]n
elementary and fundamental requirement of due process in any proceeding which is to be
accorded finality is notice reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an opportunity to present their
objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94
L. Ed. 865 (1950) (emphasis added). The court emphasized that “when notice is a person’s due,
process which is a mere gesture is not due process. The means employed must be such as one
desirous of actually informing the absentee might reasonably adopt to accomplish it.” Id. at 315
(emphasis added).
Multiple Washington cases have quoted portions of this language from Mullane with
approval, although most of the cases did not involve the forfeiture statute. E.g., Wenatchee
Reclamation Dist. v. Mustell, 102 Wash. 2d 721, 725-26, 684 Wash. 2d 1275 (1984); Okanogan
County v. Various Parcels of Real Prop., 13 Wash. App. 2d 341, 351, 466 P.3d 1114 (2020); Ryan
v. Dept. of Soc. & Health Servs., 171 Wash. App. 454, 472, 287 P.3d 629 (2012); Bruett v. Real
Prop. Known As 18328 11th Ave. N.E., 93 Wash. App. 290, 298, 968 P.2d 913 (1998) (civil
forfeiture case).
The United States Supreme Court in Dusenbery v. United States concluded that Mullane
provided the analytical framework for due process claims regarding the adequacy of notice of a
forfeiture action. 534 U.S. 161, 167, 122 S. Ct. 694, 151 L. Ed. 2d 597 (2002). Relying on
Mullane, the Court stated that the appropriate question was whether the notice given was
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No. 54510-1-II
reasonably calculated under all the circumstances to apprise the property owner of the pendency
of the forfeiture. Id. at 168.
In Jones v. Flowers, 547 U.S. 220, 126 S. Ct. 1708, 164 L. Ed. 2d 415 (2006), the Court
addressed a factual scenario similar to the facts here. In that case, the petitioner was delinquent
in payment of his property taxes, and the commissioner of state lands sent him a certified letter
stating that the property would be sold if the taxes were not paid. Id. at 223. The letter was
returned as unclaimed. Id. at 224. The commissioner subsequently received an offer to purchase
the property, and he again sent a certified letter stating that the property would be sold if the
taxes were not paid. Id. Again, the letter was retuned as unclaimed. Id. The commissioner sold
the house, and the petitioner filed suit based on a violation of due process. Id.
The Court held that “when mailed notice of a tax sale is returned unclaimed, the State
must take additional reasonable steps to attempt to provide notice to the property owner before
selling his property, if it is practicable to do so.” Id. at 225 (emphasis added). The Court quoted
the language in Mullane that “ ‘[t]he means employed must be such as one desirous of actually
informing the absentee might reasonably adopt to accomplish it.’ ” Id. at 229 (quoting Mullane,
339 U.S. at 314). The Court stated, “We do not think that a person who actually desired to
inform a real property owner of an impending tax sale of a house he owns would do nothing
when a certified letter sent to the owner is returned unclaimed.” Jones, 547 U.S. at 229.
The Court also referenced two cases where notice was found inadequate based on
“unique information about an intended recipient” even though the government followed the
statutory scheme. Id. at 230. In Robinson v. Hanrahan, notice of forfeiture proceedings was
sent to a vehicle owner’s home address when the State knew that the owner was in prison. 409
U.S. 38, 39-40, 93 S. Ct. 30, 34 L. Ed. 2d 47 (1972). In Covey v. Town of Somers, town officials
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No. 54510-1-II
knew that the property owner was incompetent. 351 U.S. 141, 146-47, 76 S. Ct. 724, 100 L. Ed.
1021 (1956). The Court in Jones stated, “the government’s knowledge that notice pursuant to
the normal procedure was ineffective triggered an obligation on the government’s part to take
additional steps to effect notice.” 547 U.S. at 230.
3. Due Process Analysis
As in Jones, the notices that TPD sent by both regular and certified mail were returned as
undeliverable. In response, TPD did not nothing. TPD made no further attempts to actually
inform Zhen of the pending forfeiture even though it knew that notice had been ineffective.
Under Mullane and Jones, TPD’s inaction violated due process if it was practicable for TPD to
take “additional reasonable steps to attempt to provide notice” to Zhen before forfeiting her
property. Jones, 547 U.S. at 225.
TPD easily could have taken additional reasonable steps to give notice to Zhen. First,
two months before the forfeiture on September 11, 2018, Zhen appeared in person at TPD to
inquire about the property that had been confiscated. TPD could have given her notice then.
Zhen also provided TPD with a new address at that time. TPD could have mailed notice to that
address. And Zhen returned to TPD approximately three weeks before the forfeiture, and again
TPD could have given her notice then.
Second, investigation would have revealed by at least August 31, more than two months
before the forfeiture, that Zhen had changed her address with DOL. TPD actually discovered
that additional address on October 29. TPD could have mailed notice to that address.
Third, TPD was in contact with Zhen’s criminal defense attorney during the pendency of
the forfeiture proceedings. TPD’s attorney twice spoke with Zhen’s attorney and even informed
him that TPD’s efforts to serve notice on Zhen were unsuccessful. Although the attorney stated
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No. 54510-1-II
that he did not represent Zhen in the forfeiture action, TPD could have asked for an updated
mailing address for Zhen during those conversations or even asked the attorney to relay notice to
Zhen.
TPD argues that under Mullane, its interest in deterring drug crimes through forfeiture of
personal property used to facilitate drug activity must be balanced against Zhen’s interest in her
personal property. TPD claims that the balance of interests did not compel TPD to take
additional steps to provide notice in this case.
Jones does quote Mullane for the proposition that “assessing the adequacy of a particular
form of notice requires balancing the ‘interest of the State’ against ‘the individual interest sought
to be protected by the Fourteenth Amendment.’ ” Jones, 547 U.S. at 229 (quoting Mullane, 339
U.S. at 314). But neither Mullane nor Jones engaged in a balancing process. The Mullane test is
whether notice was “reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action” and requires that “[t]he means employed must be such as
one desirous of actually informing the absentee might reasonably adopt to accomplish it.” 339
U.S. at 314, 315.
In any event, TPD’s argument that its interest prevails over Zhen’s interest is
unpersuasive. Zhen’s interest in over $50,000 in cash and a vehicle is significant. And while
TPD’s interest in suppressing drug activities also is significant, TPD with minimal effort could
have provided actual notice to Zhen rather than doing nothing when its attempted notice failed.
The record shows that TPD did not provide “notice reasonably calculated, under all the
circumstances,” to apprise Zhen of the pendency of the forfeiture action. Mullane, 339 U.S. at
314. We agree with the Court in Jones that a person who actually desired to inform a property
owner of an impending sale of that property would not “do nothing when a certified letter sent to
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No. 54510-1-II
the owner is returned unclaimed.” 547 U.S. at 229. Therefore, we conclude that TPD violated
Zhen’s due process rights by providing insufficient notice of seizure and intended forfeiture and
that the default order confirming forfeiture must be vacated.
C. NOTICE OF HEARING EXAMINER’S DEFAULT ORDER
Zhen argues that the forfeiture default order and the notice of the order that TPD sent to
her were inadequate because they did not inform Zhen of her right to move to set aside the
default order or to petition for review of the default order. We agree.
RCW 34.05.461(3) addresses the content of a final order issued in an APA proceeding
and states: “The order shall also include a statement of the available procedures and time limits
for seeking reconsideration or other administrative relief.” The City of Tacoma’s Office of the
Hearing Examiner Rules of Procedure for Hearings (HEXRP) provide that procedures for
forfeiture hearings must comply with the APA. HEXRP 4.03(e). TPD concedes that the default
order did not comply with RCW 34.05.461(3). And TPD’s notice of default order did not cure
this deficiency. Neither the default order nor TPD’s notice of the order advised Zhen that she
could file a motion to set aside the default order or that she could file a petition for judicial
review of the default order.
TPD’s only argument is that the deficiency in the default order and the notice of the
default order did not prejudice Zhen. In order to obtain judicial relief under the APA, a
petitioner must show prejudice. RCW 34.05.570(1)(d). However, we can infer that Zhen would
have moved to set aside the default order immediately or filed a timely petition for judicial
review of the default order if she had been informed of her options.
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No. 54510-1-II
We conclude that the forfeiture default order was deficient because it violated RCW
34.05.461(3).2
D. TIMELINESS OF MOTION TO SET ASIDE DEFAULT ORDER
TPD argues that Zhen’s motion to set aside the forfeiture default order was barred
because the motion was untimely under the APA and the HEXRP. We disagree under the
specific facts of this case.
Under RCW 34.05.440(3), a party against whom a default order has been entered may
file a motion to vacate the default order within seven days after service of the default order.
HEXRP 1.19 contains a similar provision. In addition, RCW 34.05.542(2) states that a petition
for judicial review of an administrative order must be filed within 30 days after service of the
order. Zhen did not file her motion to set aside the default order within seven days or file a
petition for judicial review within 30 days.
However, as discussed above, the forfeiture default order violated RCW 34.05.461(3) by
failing to inform Zhen that she had the right to file a motion to set aside the default order or to
petition for review of the default order. That failure was exacerbated by TPD’s due process
violation in failing to take reasonable steps to give Zhen notice of the forfeiture proceeding.
Under these specific circumstances, we conclude that Zhen’s motion to set aside the default
order was not barred even though her motion to set aside the default order was not timely under
RCW 34.05.440(3) and she failed to file a petition for judicial review within 30 days after
service of the default order. See Pal v. Dep’t of Soc. & Health Servs., 185 Wash. App. 775, 778,
342 P.3d 1190 (2015) (holding that a petitioner’s untimely request for a hearing did not warrant
2
Because we conclude that the default order was deficient on other grounds, we decline to
address Zhen’s argument that the notice of the default order was deficient because it was not
translated in Mandarin.
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No. 54510-1-II
dismissal because the agency violated due process in failing to reasonably apprise the petitioner
of the deadline for requesting a hearing).
CONCLUSION
We reverse the superior court’s order dismissing Zhen’s petition for judicial review and
remand with instructions to vacate the hearing examiner’s denial of Zhen’s motion to set aside
the default order and to refer the case to the hearing examiner for further proceedings.
MAXA, J.
We concur:
SUTTON, A.C.J.
CRUSER, J.
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