1

2
3 4
5

RECEIVED COURT OF APPEALS DIVISln,,! nl'JI': :"

,~
"

SEP 262013

6
7

COURT OF APPEALS, DIVISION I OF THE STATE OF WASHINGTON CASE NO. 68979 -7- I

8 9
10

JOHN WORTHINGTON, Appellant,

11 12 13 14
15 16

v.
WASHINGTON STATE ATTORNEY GENERAL ET AL, Respondents,

MOTION TO PUBLISH

17

I. Identify of Moving Party

18 19
20

Appellant John Worthington, 4500 SE 2ND PL ofRenton Washington

respectfully asks for the relief designated in Part 2.

21

II. Statement of Relief Sought The Appellant respectfully requests the Washington State Court ofAppeals
to published its opinion dated September 23,2013.
.

22 23
24
25

26

(] COpy

m. Facts Relevant to Motion

On September 23,2013, the Washington State Court of Appeals affirmed the trial court's ruling that Worthington's claims were barred by statute of
limitations. The Appellate Court did not rule on Res Judicata or Collateral Estoppel. The panel decided not to publish this opinionin Washington Appellate Reports.
IV. Grounds for Relief and Argument

RAP 12.3 (d)

3 4
5

6
7
8 9

10

11
12

In determining whether the opinion will be published in the

Washington Appellate Reports, the panel will use at least the following criteria: (l) Whether the decision determines an unsettled or new question of law or constitutional principle; (2) Whether the decision modifies, clarifies or reverses an established principle of law; (3) Whether a decision is ofgeneral public interest or importance; or (4) Whether a case is in conflict with a prior opinion ofthe Court of Appeals. The Appellate Courts opinion dated September 23,2013 should be published because it meets all ofthe criteria to be published in the Washington Appellate Reports. The opinion meets the first criteria under RAP 12 (d) because it determines marijuana possession under both the medical marijuana and

13

14
15

16 17
18

19
20

21

22

23
24 25

26

1
2

recreational marijuana is subject to seizure and forfeiture without any due process. The legislature needs to be properly informed that the intent of RCW

3 69.50.505 (3) now means marijuana although now legal is subject to seizure
4

forfeiture without notice or due process. The opinion meets the second criteria
5
6

under RAP 12 (d) because it modifies the established principle of law outlined in RCW 69.50.505 (3) by allowing forfeiture without a 15 notice to seize property and eliminates the statutory right to be heard. The opinion meets the third criteria under RAP 12 (d) because it is of general public interest to know that forfeiture can be conducted without proper notice, particularly medical and recreational marijuana users who expect rights to due process and deserve official notice of any official changes to RCW 69.50.505 (3). The opinion meets the fourth criteria under RAP 12 (d) because author ofthis opinion and at least one other member of the panel has authored or concurred with opinions that conflicted with the Wlpublished opinion dated September 23,2013. The opinion also meets the fourth criteria under 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 t 2013 conflicts with those previously published and unpublished opinions by the Washington State Court ofAppeals regarding the legislative intent ofRCW

8
9 10
11 12 13 14 15

16
17 18 19 20 21 22

23
24

69.50.505. (3).1
1 Shown

25
26
on page 5

V.CONCLUSION Based 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 their opinion in the above captioned matter. Respectfully submitted this 26th day of September 2013.

2
3
4

5
6

8 9
10 11

BY

0 it, 1/nWUDt4 r

12

13
14 15 16

John Worthington 4500 SE 2ND PL. Renton WA.98059

17

18
19

20
21

22
23
24

25

26

2
3
4
5

1. Notice of intent to forfeit the property must be given to the owner ofthe property. and those with any interest in the property, by the agency seizing it within 15 days of the seizure. RCW 69 .50.505 (c) In Re Forfeiture OF one 1988 Black Chevy v. Snohomish County Sheriff 944 P .2d 17 (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 notice of seizure within 15 days on the owner and any other person known to have an interest in the property. We also note that reading RCW 69.50.505(3) through (5) together, as we must, it is clear that the legislature intended that notice and an opportunity to be heard are "bedrock principles" underlying this statute. Forfeiture of the interests ofYatin and Vijay on this record does violence to these principles. The seizing agency is not to determine for itself whether forfeiture is allowed. Snohomish Regional Drug Task Force v Real Property Known As 20803 Poplar Way 150 Wash .App.387 208 p.3d 1189 (2008) Cox Authoring Becker Concurring. 4. Seizure, itself, does not allow the seizing agency to remove the occupants from physical possession 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 and the person "in charge" of the property RCW 69.50.505(c). The seizing agency is not to determine 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 the seizure" of the property. Snohomish Regional Drug Task Force v. 414 Newberg Road Division 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).

6
7

8
9
10

11
12

13
14

15
16 17 18 19 20 21

22
23 24 25 26

1
2

Certificate of Service I certify that on the date and time indicated below, I caused to be served via 3
email, a true and complete copy ofthe MOTION TO PUBLISH, to the attorneys of record in this case.
5
6

7
ROBERT CHRISTIE
2100 WESTLAKE AVENUE N., SUITE 206
SEATTLE, WA.98109
206-957-9669
bob@cbristielawgroup.com
MARK KOONTZ
TH
345 6 STREET, SUITE 600
BREMERTON, WA. 98337
360473-5161
markkoontz@ci.bremerton.wa.us
STEWART ESTES
800 FIFTH AVENUE, SUITE 4141
SEATTLE, WA. 98104-3175
206-623-8861

sestes@kbmlawyers.com

10

11

12

13

14
15 16

ALLISON CROFT
800 FIFTH AVENUE, SUITE 2000
SEATTLE, WA. 98104-3188
206464-7352
allisonc@atg.wa.gov

17
I declare under penalty of perjury under the laws ofthe United States that 18
the foregoing is True and correct. 19
Respectfully executed on this 25th day of September, 2013 20 21
22
23
24
25 26

BY~U~ John Worthington

4500 SE 2ND PL. Renton W A.98059

- - - - ..

--

.. -.~~ .. ~- ..