Motion to Publish - Worthington

7/28/2019 Motion to Publish - Worthington

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RECEIVEDCOURT OF APPEALSDIVISln,,! nl'JI':" :"SEP 262013

COURT OF APPEALS, DIVISION I OF THE STATE OF WASHINGTON

JOHN WORTHINGTON, CASE NO. 68979 -7- IAppellant,

v. MOTION TO PUBLISHWASHINGTON STATE ATTORNEYGENERAL ET AL,

Respondents,

I. Identify of Moving PartyAppellant John Worthington, 4500 SE 2NDPL ofRenton Washington

respectfully asks for the relief designated in Part 2.II. Statement of Relief Sought

The Appellant respectfully requests the Washington State Court ofAppealsto published its opinion dated September 23,2013..

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m. Facts Relevant to Motion1 2 On September 23,2013, the Washington State Court of Appeals affirmed3 the trial court's ruling that Worthington's claims were barred by statute of 4 limitations. The Appellate Court did not rule on Res Judicata or Collateral6 Estoppel. The panel decided not to publish this opinionin Washington Appellate7 Reports.8 IV . Grounds for Relief and Argument 9 RAP 12.3 (d)

In determining whether the opinion will be published in the1112 Washington Appellate Reports, the panel will use at least the following13 criteria: (l) Whether the decision determines an unsettled or new question14 of law or constitutional principle; (2) Whether the decision modifies,16 clarifies or reverses an established principle of law; (3) Whether a17 decision is ofgeneral public interest or importance; or (4) Whether a18 case is in conflict with a prior opinion of the Court of Appeals.19

The Appellate Courts opinion dated September 23,2013 should be21 published because it meets all of the criteria to be published in the Washington22 Appellate Reports.23

The opinion meets the first criteria under RAP 12 (d) because it24determines marijuana possession under both the medical marijuana and

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1 recreational marijuana is subject to seizure and forfeiture without any due2 process. The legislature needs to be properly informed that the intent ofRCW

3 69.50.505 (3) now means marijuana although now legal is subject to seizure4 forfeiture without notice or due process. The opinion meets the second criteria6 under RAP 12 (d) because it modifies the established principle of law outlined in7 RCW 69.50.505 (3) by allowing forfeiture without a 15 notice to seize property8 and eliminates the statutory right to be heard. The opinion meets the third criteria9

under RAP 12 (d) because it is ofgeneral public interest to know that forfeiture can11 be conducted without proper notice, particularly medical and recreational12 marijuana users who expect rights to due process and deserve official notice of any1314 official changes to RCW 69.50.505 (3). The opinion meets the fourth criteria under

RAP 12 (d) because author of this opinion and at least one other member of the16 panel has authored or concurred with opinions that conflicted with the Wlpublished17 opinion dated September 23,2013. The opinion also meets the fourth criteria under1819 RAP 12 (d)because It has been well established by the Washington State Court of

Appeals previous decisions, that the opinion of this panel dated September 23 t21 2013 conflicts with those previously published and unpublished opinions by the2223 Washington State Court ofAppeals regarding the legislative intent ofRCW24 69.50.505. (3).1

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V.CONCLUSIONBased on the forgoing arguments, Worthington respectfully request that the

panel of Judges that wrote and concurred with the decision in Worthington v.Washington State Attorney General et aI, reverse its decision not to publish theiropinion in the above captioned matter.

Respectfully submitted this 26th day of September 2013.

BY 1/nWUDt40 it,r John Worthington4500 SE 2ND PL.Renton W A.98059

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1. Notice of intent to forfeit the property must be given to the owner of the property. and thosewith any interest in the property, by the agency seizing it within 15 days of the seizure. RCW69 50.505 (c) In Re Forfeiture OF one 1988 Black Chevy v. Snohomish County Sherif f 944 P.2d17 (1997) Cox concurring.2. Forfeiture proceedings are commenced when the seizure occurs. RCW 69.50.505(3); State v.Benshoof Division I (2011). Cox Concurring.3. Proceedings for forfeiture are commenced by the seizure, and the agency must serve noticeof seizure within 15 days on the owner and any other person known to have an interest in theproperty. We also note that reading RCW 69.50.505(3) through (5) together, as we must, it isclear that the legislature intended that notice and an opportunity to be heard are "bedrockprinciples" underlying this statute. Forfeiture of the interests ofYatin and Vijay on thisrecord does violence to these principles. The seizing agency is not to determine for itselfwhether forfeiture is allowed. Snohomish Regional Drug Task Force v Real Property KnownAs 20803 Poplar Way 150 Wash .App.387 208 p.3d 1189 (2008) Cox Authoring BeckerConcurring.4. Seizure, itself, does not allow the seizing agency to remove the occupants from physicalpossession ofthe property. The effect of a seizure is to commence the forfeiture proceeding.RCW 69.50.505(c)." Id. at 85-86 Bruett v. Real Prop. Known as 18328 lIth Ave. N.B., 93 Wn.App. 290, 303, 968 P.2d 913 (1998)5. Individuals specifically required to be notified within 15 days of seizure include the owner andthe person "in charge" of the property RCW 69.50.505(c). The seizing agency is not todetermine for itself whether forfeiture is allowed. Espinoza v. City of Everett, 87 Wn. App.857,872-73,943 P.2d 387 (1997)6. Under RCW 69.50.505(3), "proceedings for forfeiture shall be deemed commenced by theseizure" of the property. Snohomish Regional Drug Task Force v. 414 Newberg RoadDivision 12009.7. Notice must be given within 15 days of seizure. RCW 69.50.505(c) State v. Alloway 64 Wn.App. 796828 P.2d 591 (1992).

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Certificate ofServiceI certify that on the date and time indicated below, I caused to be served viaemail, a true and complete copy of the MOTION TO PUBLISH, to the attorneys ofrecord in this case.

ROBERT CHRISTIE 2100 WESTLAKE AVENUE N., SUITE 206 SEATTLE, WA.98109 206-957-9669 [email protected] MARK KOONTZ TH 345 6 STREET, SUITE 600 BREMERTON, WA. 98337 360473-5161 [email protected] STEWART ESTES 800 FIFTH AVENUE, SUITE 4141 SEATTLE, WA. 98104-3175 206-623-8861 [email protected] ALLISON CROFT 800 FIFTH AVENUE, SUITE 2000 SEATTLE, WA. 98104-3188 206464-7352 [email protected]

I declare under penalty ofperjury under the laws of the United States thatthe foregoing is True and correct.Respectfully executed on this 25th day of September, 2013

B Y ~ U ~John Worthington4500 SE 2NDPL.Renton W A.98059

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Motion to Publish - Worthington

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