IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JOHN URQUHART, in his capacity as
King County sheriff; and KING COUNTY                  No. 75026-7-
SHERRIFF'S OFFICE ,
                                                      DIVISION ONE
                    Respondents,
                                                      UNPUBLISHED OPINION



$6,510.00 CASH AND ALL NON-
CONTRABAND SEIZED ITEMS,

                    Defendant In Rem,

             and


RICHARD MENDALL,

                    Appellant.                        FILED: December 27, 2016


      Appelwick, J. — Mendall seeks return of property on the basis that the

forfeiture hearing was untimely.    The hearing examiner did not abuse her

discretion by granting continuances for a medical emergency and a preplanned

vacation. The hearing was not untimely. We affirm.

                                    FACTS

      King County Sheriff's Deputies seized weapons, drugs, and cash from

Richard Mendall during a traffic stop. On June 9, 2014, the King County Sheriff's

Office (KCSO) mailed a notice of seizure and intended forfeiture to Mendall. In
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JOHN URQUHART, in his capacity as
King County sheriff; and KING COUNTY                 No. 75026-7-I
SHERRIFF'S OFFICE ,
                                                     DIVISION ONE
                   Respondents,
                                                     UNPUBLISHED OPINION



$6,510.00 CASH AND ALL NON-
CONTRABAND SEIZED ITEMS,

                   Defendant In Rem,

            and


RICHARD MENDALL,

                   Appellant.                        FILED:



      Appelwick, J. — Mendall seeks return of property on the basis that the

forfeiture hearing was untimely.   The hearing examiner did not abuse her
discretion by granting continuances for a medical emergency and a preplanned

vacation. The hearing was not untimely. We affirm.

                                    FACTS

      King County Sheriff's Deputies seized weapons, drugs, and cash from
Richard Mendall during a traffic stop. On June 9, 2014, the King County Sheriffs

Office (KCSO) mailed a notice of seizure and intended forfeiture to Mendall. In
No. 75026-7-1/2




response, on July 3, 2014, Mendall mailed a notice of claim and request for a

hearing regarding the forfeiture.

         On September 22, 2014, KCSO sent Mendall a notice of hearing set for

September 30, 2014. On September 27, 2016, the hearing examiner granted

KCSO a continuance to "the first week of December" due to a serious health

emergency involving counsel's family. KCSO's counsel was not available until

October 22, 2014. The hearing examiner had previously advised that her first

availabilities after October 22 would be December 2-3, December 8-11, or

December 16-18. On November 17, 2014, KCSO e-mailed Mendall, stating that

the hearing examiner would not be available until the second week of December.

Citing due process, Mendall objected to the hearing being set beyond the first

week of December.

         The hearing occurred on December 9, 2014. The hearing examiner ruled

in KCSO's favor, and Mendall therefore forfeited the property. The superior court

affirmed the hearing examiner. Mendall sought direct review from the Supreme

Court. The Supreme Court denied that request and transferred the appeal to this

court.


                                    DISCUSSION

         Mendall makes two arguments. First, he acknowledges that the timing of

the forfeiture hearing complied with existing precedent. But, he argues that we

should overturn that precedent. Second, he argues that the hearing examiner

abused her discretion by granting two continuances without good cause.
No. 75026-7-1/3




   I.   Timely Hearing

        Mendall's first argument is straightforward. He asks this court to overturn

its own precedent on civil forfeiture procedure.

        Mendall believes that his due process rights were violated, because the

forfeiture hearing was scheduled over 90 days from the date of seizure. KCSO

responds that the hearing needs to be scheduled within 90 days of Mendall's

claim challenging the seizure. This presents a question of law, that this court

reviews de novo.     Escamilla v. Tri-Citv Metro Drug Task Force, 100 Wn. App.

742, 747, 999 P.2d 625 (2000), abrogated on other grounds by In re Forfeiture of

One 1970 Chevrolet Chevelle, 166 Wn.2d 834, 215 P.3d 166 (2009).

        Under both Washington and federal law, a law enforcement agency must

give an individual notice of its intent to permanently seize property, and that
individual must have the opportunity to be heard. RCW 69.50.505(3); United

States v. James Daniel Good Real Prop., 510 U.S. 43, 48, 114 S. Ct. 492, 126 L

Ed. 2d 490 (1993). Within 45 days of service of notice that personal property has

been seized, the person must respond with notice that he or she intends to

contest the seizure.     RCW 69.50.505(5). This response triggers a right to a

forfeiture hearing within 90 days.      In re the Forfeiture of One 1988 Black

Chevrolet Corvette, 91 Wn. App. 320, 323, 963 P.2d 187 (1997).                 The

Administrative Procedure Act, chapter 34.05 RCW, and Washington case law

govern forfeiture proceedings in Washington. See Black Chevrolet Corvette, 91

Wn. App. at 323.
No. 75026-7-1/4




       Two Supreme Court cases clarify this statutory scheme, Tellevik v. 31641

West Rutheford Street, 120 Wn.2d 68, 838 P.2d 111, 845 P.2d 1325 (1992)

(Tellevik I), and Tellevik v. 31641 West Rutheford Street, 125 Wn.2d 364, 884

P.2d 1319 (1994) (Tellevik II).     In Tellevik I, the claimants alleged that RCW

69.50.505    contained    insufficient   procedural   safeguards       and   thus   was

unconstitutional.    120 Wn.2d at 77.     The Supreme Court read a 90 day time

limitation into RCW 69.50.505 "in order to preserve the constitutionality of the

statute." Id at 85-86. Specifically, it held that due process entitles claimants "to

a full adversarial [forfeiture] hearing within 90 days."      jd, at 86.     Tellevik II

solidified this principle two years later. There, the Supreme Court found that an

agency's failure to even provide a hearing date for nearly six months violated

claimants' due process rights. Tellevik II, 125 Wn.2d at 372-73. The Court noted

that "the 90-day hearing requirement articulated in Tellevik I is not dicta, but is,

instead, central to its holding." \_± at 372 (emphasis in original).

       Tellevik I and Tellevik II left open the question of what event triggers the

90 day hearing window.         As Mendall notes, the plain language of RCW

69.50.505(3) states that "proceedings for forfeiture shall be deemed commenced

by the seizure." (Emphasis added.) But, in Black Chevrolet Corvette, this court

held that the right to a hearing within 90 days is triggered bv the claimant giving

notice of a claim contesting the seizure.      91 Wn. App. at 322-24. The court

reasoned that that


       The applicable provisions of the Administrative Procedure Act
       (APA) require that hearing commence within 90 days, RCW
       34.05.419, and further provide that the hearing commences when
No. 75026-7-1/5


       the agency or hearing officer notifies a party that some stage of the
       hearing will be conducted.

\± at 322; see also RCW 34.05.413(5). Therefore, because a hearing will only

"be conducted" if a claimant serves a notice of claim, that notice of claim triggers

the 90 day window. Black Chevrolet Corvette, 91 Wn. App. at 324; Escamilla,

100 Wn. App. at 749 "[Proceedings must be commenced within 90 days of the

date a claimant notifies the seizing agency of a claim.").

       Mendall concedes that the hearing was scheduled within 90 days of his

notice of claim and that the hearing examiner properly applied Black Chevrolet

Corvette. But, he explicitly asks us to overturn this court's decisions in Black

Chevrolet Corvette and Escamilla. Mendall argues that this is warranted in light

of the "plain language of 69.50.505(3)."

       Although RCW 69.50.505(3) states that "proceedings for forfeiture shall be

deemed commenced bv the seizure," there is no indication that the right to a

hearing within 90 days also commences on that date. Rather, the 90 day window

is governed by the APA.       Black Chevrolet Corvette, 91 Wn. App. at 323-24.

RCW 69.50.505(5) states that a "hearing before the seizing agency and any

appeal therefrom shall be under Title 34 RCW," which contains the APA. And,

the APA explicitly states that "within 90 days after receipt of [an] application ...

the agency shall . . . [c]ommence an adjudicative proceeding."                 RCW

34.05.419(1 )(b) (emphasis added).      In the context of forfeiture, the claimant's

notice of claim serves as the "application," because the notice of claim is the

document that triggers the forfeiture hearing. This sound reasoning governed the

result in Black Chevrolet Corvette. 91 Wn. App. at 324. It also governs here.
No. 75026-7-1/6




       We hold that the KCSO properly scheduled Mendall's hearing within 90

days of Mendall serving his notice of claim against the seizure.

   II. Good Cause for Continuance

      Mendall also argues that the hearing examiner improperly granted two

continuances. As an initial matter, these continuances moved the hearing date

beyond the 90 day window.          However, continuances that move a timely

scheduled hearing date beyond 90 days after the seizure do not violate Tellevik

or its progeny. See City of Pes Moines v. Pers. Prop. Identified as $81,231 in

U.S. Currency, 87 Wn. App. 689, 698, 943 P.2d 669 (1997). Thus, the remaining

question is whether the hearing examiner properly granted these continuances.

      A hearing examiner has the authority to grant continuances. WAC 10-08-

090(1). The hearing examiner may order a continuance if a party shows good

cause and may consider many factors, including whether there is prejudice to the

defendant's presentation of his case. ]d\; State v. Chichester, 141 Wn. App. 446,

459-60, 170 P.3d 583 (2007). This court reviews a grant of a continuance for

abuse of discretion. State v. Hurd, 127 Wn.2d 592, 594, 902 P.2d 651 (1995).

An abuse of discretion occurs when a decision is manifestly unreasonable or

rests on untenable reasons. Davis v. Globe Mach. Mfg. Co.. 102 Wn.2d 68, 77,

684 P.2d 692 (1984).

      Here, the hearing examiner originally continued the hearing until "the first

week of December."      She then set it for the Monday following that week,

December 9, 2014, based on two conflicts. First, KCSO's counsel faced a family

health emergency. She was not available for the hearing from September 26 to
No. 75026-7-1/7




October 22.   Second, the hearing examiner had a prescheduled vacation that

overlapped with KCSO's counsel's absence. At the time, the hearing examiner's

next available dates after KCSO's counsel's return were December 2-3 or

December 8-11. Mendall does not argue that he was prejudiced.1 Thus, the only

issue is whether the hearing examiner abused her discretion in finding good

cause supported the continuances based on a family health emergency and then

a preplanned vacation.

      First, Washington courts routinely find good cause for illness. See, e.g.,

State v. Ruud, 6 Wn. App. 57, 59, 491 P.2d 1351 (1971) (finding good cause

when "counsel became ill"). Mendall does not dispute the existence of a family

health emergency.        No published Washington decision explicitly endorses

counsel's family health emergency as "good cause," but neither does one reject

it. We decline to hold that the trial court abused its discretion in granting a

continuance for a family health emergency. This is especially true in light of the

case law on continuances for vacations, which may have planning and cost

implications but lack the immediacy of a family health emergency. See, e.g..

State v. Jones. 117 Wn. App. 721, 729, 72 P.3d 1110 (2003) ("[A]ttorney's

prescheduled vacation is an adequate basis to justify a continuance.").




       1 Mendall's briefing contains no discussion of how the two month delay
prejudiced his case. Instead, Mendall asserts that he "need not show prejudice
here." Granted, prejudice is only a factor that the hearing examiner considers in
determining whether to grant a continuance. Chichester. 141 Wn. App. at 459-
60. But, the lack of prejudice further shows that the hearing examiner did not
abuse her discretion in granting a continuance.
No. 75026-7-1/8




       Second, Washington courts have also found that prescheduled vacations

constitute good cause for the purposes of a continuance. See State v. Grillev. 67

Wn. App. 795, 800, 840 P.2d 903 (1992) ("[T]he District Court did not abuse its

discretion in granting a continuance where the investigating officers were

unavailable due to their scheduled vacations."); State v. Selam, 97 Wn. App. 140,

143, 982 P.2d 679 (1999) ("[W]e cannot say the trial court abused its discretion in

granting a brief continuance while the defense counsel was on vacation."); State

v. Heredia-Juarez. 119 Wn. App. 150, 155, 79 P.3d 987 (2003) (holding that

prosecutor's vacation warranted continuance, and that reassignment to an

available prosecutor was not necessary). Granting the continuances based on a

preplanned vacation and a family medical emergency was not an abuse of

discretion.


       We affirm.




WE CONCUR:

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