Opinion
No. 61259-0-I.
June 9, 2008.
Appeal from a judgment of the Superior Court for Whatcom County, No. 05-2-02400-0, Ira Uhrig, J., entered August 4, 2006.
Affirmed by unpublished per curiam opinion.
John P. W. Rosch successfully challenged a decision by a Whatcom County Sheriff's designate, who concluded that a truck Rosch owned was forfeited as a result of his son using it to deal drugs. The superior court ordered the truck be returned to Rosch and awarded him some of his attorney fees. The court, however, denied Rosch's request for declaratory and injunctive relief and attorney fees under 42 U.S.C.A. § 1983. On appeal, Rosch argues that the forfeiture statute is unconstitutional because it allows the sheriff or sheriff's designate to adjudicate forfeiture proceedings and, therefore, the superior court erred when it did not award him attorney fees under the federal statutes. Rosch, however, elected to proceed before the sheriff's designate, rather than challenging the forfeiture in court. He, therefore, waived his right to challenge the constitutionality of the less formal proceeding. We affirm.
FACTS
John Patrick Rosch owned a tan Chevrolet pickup truck. On June 23, 2005, he allowed another person to use the truck to deliver illegal drugs. A week later, John himself used the truck to deliver drugs. On July 6, 2006, John transferred title to the truck to his father, but the next day, he once again used the truck to deliver drugs.
On July 13, 2005, the Whatcom County Sheriff's Department seized the truck and notified John's father, John P. W. Rosch, of its intention to forfeit the truck pursuant to RCW 69.50.505. The notice advised Rosch that if he claimed ownership, he was entitled to a hearing before the sheriff or his designate, or a hearing in a court of competent jurisdiction.
Rosch challenged the forfeiture, but did not exercise his right to remove the matter to a court. Whatcom County Undersheriff Carey James presided at an administrative hearing. Three members of the Northwest Regional Drug Task Force testified in favor of forfeiture and established that the truck was used to deliver drugs two times before John transferred the title to Rosch. Rosch testified that he was aware that his son used drugs, but he did not know his son was using the truck to deal drugs.
The undersheriff ordered forfeiture. Rosch petitioned for judicial review in the superior court. Rosch asked the court to declare RCW 69.50.505 unconstitutional, prohibit enforcement of the statute in the future, and award damages and attorney fees under RCW 69.50.505 and 42 U.S.C. § 1983 and § 1988. He moved for summary judgment. Whatcom County conceded that the forfeiture order should be overturned, but argued that Rosch should not be awarded all the attorney fees he requested. The court ordered the sheriff to return the truck to Rosch and granted him $2,500 in attorney fees and costs, but denied his request for declaratory and injunctive relief and attorney fees under 42 U.S.C. 1983 and 1988.
Rosch sought direct review of the summary judgment order in the Supreme Court. The Supreme Court denied direct review and transferred the case to this court.
ANALYSIS
Rosch contends that RCW 69.50.505 is unconstitutional. Whatcom County first argues that this court should dismiss Rosch's appeal because it is moot. We disagree.
In general, the jurisdiction of a court may not be invoked unless there is a justiciable controversy. A justiciable controversy exists if there is
`(1) . . . an actual, present and existing dispute, or the mature seeds of one, as distinguished from a possible, dormant, hypothetical, speculative, or moot disagreement, (2) between parties having genuine and opposing interests, (3) which involves interests that must be direct and substantial, rather than potential, theoretical, abstract or academic, and (4) a judicial determination of which will be final and conclusive.'
To-Ro Trade Shows v. Collins, 144 Wn.2d 403, 411, 27 P.3d 1149 (2001), quoting Diversified Indus. Dev. Corp. v. Ripley, 82 Wn.2d 811, 815, 514 P.2d 137 (1973).
Whatcom County argues that Rosch's appeal does not present "an actual, present and existing dispute" because his truck was returned and he was awarded attorney fees and, therefore, his appeal is moot. But Rosch's constitutional claims under 42 U.S.C.A. § 1983 are separate from his demand for the truck's return and attorney fees under the state statute. The federal statute provides remedies not otherwise available. See Sintra, Inc. v. Seattle, 119 Wn.2d 1, 10, 829 P.2d 765 (1992). If Rosch can establish a constitutional violation, he may have a legitimate claim under § 1983. The cases cited by the County do not hold to the contrary. See Wash. Educ. Ass'n v. Pub. Disclosure Comm'n, 150 Wn.2d 612, 80 P.3d 608 (2003); Superior Asphalt and Concrete Co. v. Dep't of Labor and Indus., 121 Wn. App. 601, 89 P.3d 316 (2004), review denied, 153 Wn.2d 1005, 103 P.3d 1248 (2005). We, therefore, consider Rosch's appeal further.
Constitutional challenges to statutes are questions of law and are reviewed de novo. City of Redmond v. Moore, 151 Wn.2d 664, 668, 91 P.3d 875 (2004). Rosch argues that RCW 69.50.505 is unconstitutional because it allows the sheriff or sheriff's designate to adjudicate forfeiture proceedings and allows the sheriff's department to retain the forfeited property or its proceeds for its own use. Rosch contends that the statute violates his due process right to an impartial decisionmaker. The parties agree that In re the Application of Borchert, 57 Wn.2d 719, 359 P.2d 789 (1961), controls. Rosch argues that Borchert should be overruled. His argument is not persuasive. It depends upon the 9th Circuit's decision in Gete v. I.N.S., 121 F.3d 1285 (9th Cir. 1997), which is distinguishable from Borchert.
Borchert involved an adjudication by an unsalaried justice of the peace. Richard Borchert was arrested for driving while under the influence of alcohol (DUI), reckless driving, and operating a motor vehicle without a valid license. When he was arraigned before an unsalaried justice of the peace, he challenged the court's jurisdiction, contending that the statute that fixed the compensation of justices of the peace on a fee basis was unconstitutional. Before the justice of the peace ruled on Borchert's motion, she offered to grant him a change of venue to a salaried judge. Borchert refused the offer, and the justice of the peace denied his motion to dismiss. He was found guilty of DUI and operating a motor vehicle without a valid license.
Borchert sought a writ of habeas corpus in superior court. He argued that the justice was prejudiced against him because she was paid on a fee basis rather than a fixed salary and, therefore, the fee justice lacked jurisdiction to try his case. The superior court granted the writ. The Supreme Court reversed.
The Supreme Court explained that a judge is biased or prejudiced if he or she has a preconceived adverse opinion against a person's cause without just grounds, or before sufficient knowledge. Borchert, 57 Wn.2d at 722. Borchert contended that prejudice was inherent in the system that provided for unsalaried justices of the peace. But the system provided for both salaried and unsalaried justices of the peace and, if Borchert believed that the fee justice was prejudiced against him, he had an absolute right to a change of venue to a salaried judge, with no cost to him. Furthermore, although bias or prejudice of a judicial officer may affect or disqualify a particular forum or venue, it does not affect jurisdiction. Borchert, 57 Wn.2d at 722-23. Courts presided over by unsalaried justices of the peace were authorized by, and in conformity with, the state constitution. Therefore, the fee justice court had jurisdiction over the offense. Borchert, 57 Wn.2d at 723.
The Borchert court distinguished the federal Supreme Court case upon which the superior court had relied in finding that the fee justice compensation statute was unconstitutional, Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927). The accused in Tumey was charged in the "liquor court" of North College Hill, Ohio, with illegal possession of liquor. The "liquor court" was established by a village ordinance and was presided over by the village mayor. The mayor was not compensated for performing his judicial duties unless he found the accused guilty. Because the ordinance did not provide for a trial by jury, there could be no change of venue. The right of appeal was limited to questions of law. Under those circumstances, the judicial system created by the village ordinance denied the accused procedural due process. Borchert, 57 Wn.2d at 723.
After the Borchert court distinguished Tumey and concluded that the statute did not inherently deny the accused due process, it considered whether Borchert actually received due process. The Supreme Court held that, because Borchert was offered, but refused, a change of venue to a salaried judge, Borchert waived his right to be tried before a tribunal that would have afforded him due process, even if the particular justice who decided his case was influenced by the compensation she would receive. Borchert, 57 Wn.2d at 725-26.
Rosch contends that Borchert is no longer viable after the 9th Circuit's decision in Gete, which involved the seizure and administrative forfeiture of property by the Immigration and Naturalization Service (INS). Gete, however, is distinguishable from Borchert.
Gete involved ten named plaintiffs whose vehicles were seized by the INS for allegedly transporting illegal aliens into the United States. The opinion does not set forth the facts relating to all ten plaintiffs, but apparently none of them was guilty of anything more than an honest mistake.
The vehicles owners' could contest the forfeitures in court or in an administrative "personal interview." To challenge the forfeitures in court, the owners needed to post a bond, and the government would retain both the bond and the car throughout the litigation process. No bond was required for the administrative process, although the INS would still hold the car pending the outcome of the proceeding. The plaintiffs chose the quicker, less costly administrative proceeding. Some of the owners apparently recovered their vehicles after paying a fine and fees. Others lost their vehicles permanently. Later, the plaintiffs sued the INS, alleging that its procedures violated their constitutional rights.
The district court dismissed most of the plaintiffs' claims based upon lack of jurisdiction. Alternatively, the district court held, and the INS argued on appeal, that by opting for the administrative procedure, rather than the judicial process, the plaintiffs waived their right to judicial review of the agency's procedures and their right to bring constitutional challenges. The 9th Circuit Court of Appeals reversed, stating that the district court's and government's position "simply cannot be correct. If it were, it would insulate the INS' policies and procedures from review even if, for example, the agency followed a policy of issuing favorable administrative forfeiture rulings to all relatives of INS officials and unfavorable rulings to all minorities." Gete, 121 F.3d at 1293.
The appellate court explained the vehicle owners' options under the federal statutes. After a vehicle was seized, a form letter informed the owners that they could invoke the judicial process by commencing an action in federal court or proceed administratively by attending a personal interview with an immigration officer. Under the administrative procedure, an immigration officer had to return the vehicle to the owner if the officer decided that the government lacked probable cause to seize it or that no violation occurred. If the officer decided that a violation occurred, but the owner established he was not privy, or give consent, to the illegal use of his vehicle, the INS Regional Commissioner had the discretion either to forfeit the vehicle or declare that pursuing forfeiture was not in the best interest of justice and return the vehicle to the owner. Otherwise, the vehicle was automatically deemed forfeited.
The court noted that the letter was inaccurate and illogical because the vehicle owner does not "commence" judicial forfeiture; the owner has the option to "obtain" judicial forfeiture. Gete, 121 F.3d at 1290 n. 8.
If the INS determined that a vehicle was forfeited, it issued a declaration to that effect without any statement of the reasons. The former owner could then ask either that the forfeiture be remitted and the vehicle returned without penalty, or that the penalty be mitigated, allowing the vehicle to be returned upon the payment of a fine and fees. When the Regional Commissioner denied a request for remission or mitigation, he was to issue a written determination setting forth the reasons for the denial, but in practice, the INS provided only a form letter with check marks next to the standard reasons for rejection that the Commissioner considered applicable. After that, the petitioner could request reconsideration, but such requests had to be based upon evidence not previously considered. If the request for reconsideration was denied, no further review was available in any forum.
The 9th Circuit Court rejected the government's contention that the vehicle owners waived their right to judicial review of the agency's procedures and their right to bring constitutional challenges by choosing the administrative option:
Under the INS' approach, as long as a lawful judicial procedure was provided as an option, an agency would be free to adopt and apply any administrative procedures it wished, no matter how flagrantly unconstitutional. Such a theory of unfettered, unlawful, and unreviewable agency discretion clearly conflicts with the relevant case law and the Administrative Procedures Act, not to mention the Constitution. In order to accept it, we would be required not only to repudiate the settled law concerning waivers of constitutional rights, but also to give government officials free rein to do whatever they chose, no matter how arbitrary, capricious, or clearly unconstitutional, as long as they acted in the context of administrative hearings for which a judicial alternative was offered.
Gete, 121 F.3d at 1293.
Gete is distinguishable from Borchert because the fee justice system in Borchert gave the accused person a right to a trial de novo in superior court if he was not satisfied with the outcome by the unsalaried justice of the peace. The fee justice system provided safeguards against bias or prejudice of a justice of the peace. In contrast, the administrative process at issue in Gete provided no such safeguards against arbitrary or clearly unconstitutional actions. Gete does not provide a basis for overturning Borchert. When Rosch elected to allow the sheriff's designate to decide the forfeiture, he waived his right to challenge the constitutionality of the statute and argue that he was denied due process.
Of course, this court may not overturn a Supreme Court decision. As discussed above, Rosch petitioned for direct review in the Supreme Court, and the parties' briefs are the same as those filed in that court.
ATTORNEY FEES
Rosch asks this court to award him his attorney fees on appeal. Because he is not the prevailing party, his request for an award of fees on appeal is denied.
CONCLUSION
Rosch waived his right to challenge the constitutionality of a sheriff or sheriff's designate deciding forfeiture when he opted to challenge the forfeiture before the sheriff's designate, rather than a judge. Therefore, the superior court did not err when it declined to award Rosch attorney fees and costs under 42 U.S.C.A. § 1983. The lower court's decision is affirmed, and Rosch's request for his attorney fees on appeal is denied.