IN THE COURT OF THE STATE OF WASHINGTONIN AND FOR SNOHOMISH COUNTY In Re: ) Cause No.CRP003735 Brandia Taamu Petitioner City of Everett & Animal Control Respondents Complaint for Emergency Injunction Petitioner, to Stay Euthanizing or Transferring of the Pets of Petitioners, and for Motion for Release of the Animal Property of Petitioner Petitioners Brandia Taamu Pro Se, respectfully submit this Petition, Motion and Memo in support of Emergency Injunction to Stay Euthanizing of the Pets and Property of Petitioners and for Release of Property of Petitioner. The basis for this Petition is that the procedure used by the City of Everett Municipal Code Chapter 6.04.090 for seizure and impound of animals fails to provide the petitioners with the minimum level of due process to which they are entitled under the law for their property and liberty interests in their canine property. This means that any decision/infraction issued by the City of Everett (or animal care and control) that petitioners failed to adequately provide for their pets under (PLEASE SEE NOTE A.) Citation Number-CRP003735 ) is constitutionally deficient. For this reason, the petitioners request that this Court stay the euthanizing or transferring or other disposition of petitioners' dogs and cats and release petitioners' dogs and cats immediately back into the custody of the petitioners. NOTE A) I was never given a citation so will use the cause number The Court of Appeals of the State of Washington has previously invalidated provisions of the King County Code for failing to provide minimally adequate procedural due process. Mansour v. King County, 131 Wn. App. 2155, 263 et seq. (2006) (relying substantially on Nguyen v. Dep't of Health. Med. Quality Assurance Comm'n, 1444 Wn.2d 516, 522-523, 29 P.3d 689 (2001). As will be shown below, the citation and actions of the City of Everett and/or animal control authorities provides even less due process protections than the provisions of the King County Code that Mansour found to be deficient. Additionally, the practice of seizing the personal property of owners without following statutory notice requirements, as occurred in this case, is a denial of procedural due process. Petitioners were cited for (not providing water on a 24 hour basis??? Under citation no. (PLEASE SEE NOTE A) for their pets and her pets were summarily seized by the City of Everett- and/or AC. Petitioners' pets have been held in impound since their seizure January,6, 2011 at City of Everett Anmal shelter. (PLEASE SEE NOTE A) RCW 16.52.100 is the Washington State statute that concerns the feeding and watering of animals. The Washington State statute that provides for removal of animals for feeding and care by law enforcement or animal control authorities for improper care of animals is RCW 16.52.085. Notice requirements after removal of personal property by authorities is provided in paragraph (3). After removal of animals, notice must be provided by posting, personal service or certified mail and the owner must be provided written notice of the reasons for removal in this notice and legal remedies available to the owner. These notice requirements are similar to the notice requirements found under Washington State's forfeiture statute RCW 69.50, paragraph. When property of an owner is seized, notice must be provided by the seizing authority. RCW 63.32.010 also provides for notice requirements when any personal property shall come into the possession of the police authorities of any city in connection with the official performance of their duties. This statute provides for a method of disposition of property after it remains unclaimed by the owners after written notice to the owner. The notice shall inform the owner of the dispostion which may be made of the property and the time that the owner has to claim the property unless the item is to be used as evidence in a criminal case or that the property has been determined to be unsafe and unable to be made safe for use by the public, or illegal to possess or used in an illegal manner. No proper notice procedures have been followed by the City of Everett/animal care and control authorities under animal seizure statutes, or property forfeiture statutes, to the owners of the pets setting forth the reason for the seizure and the process whereby the petitioners may reacquire possession of their property in their pets. Petitioners have been denied procedural due process by the City of Everett and/or (AC) authorities. The pets were seized unlawfully as they were NOT in a life threatening condition pursuant to RCW 16.52.085. Property owners have the right to challenge such seizures and, if they “substantially prevail,” recover their costs and reaasonable attorney fees. RCW 69.50.505(6). Washington state's civil forfeiture act was adopted to protect people from having their property wrongfully seized by the government. In Guillen v. Contreras (Sup. Ct. En Banc. No. 82531-9 (9/2010), amicus notes that “an owner has the right to resist the taking of any of his property regardless of market value.” Amicus Br. At 8, cf Guillen v. Contreras, Sup. Ct. En Banc, No. 82531-9 (9/9/2010). A citizen has the right to object to seizure, even if temporary, of his personal property no matter the market value. Id. Forfeitures of personal and real property are not favored in the law and very specific procedures must be followed.by government officials and its agents when seizing property, including animals. If statutory procedures are not followed, the property was illegally seized and a person is lawfully entitled to possession thereof. Unless the seized property is needed for evidence, the petitioners are not the rightful owners, the property is contraband, or the property is subject to forfeiture pursuant to statute, the seized property must be returned. Id. The petitioners are the rightful owners of their dogs and cats, their property in dogs and cats is not “contraband”, statutory procedures for seizure of property have not been followed, and the seized property in pets must be returned to the petitioners. If the state argues that the pets are “derivative contraband” and that petitioners are somehow guilty of a crime, the government must follow property forfeiture procedures to divest petitioners of their interest in their property in dogs and cats. One 1958 Plymouth Sedan v. Pennsylvannia, 380 U.S. At 699; Cooper, 904 F.2d at 305; Farrell, 606 F. 2d at 1344; David v. Fowler, 504 F. Supp. At 505, cf from State v. Alaway, 64 Wn. App. 796, 828 P.2d 591, p. 3 (4/2/92). Washington courts often look to federal law to determine lawful forfeiture procedures. The State cannot confiscate property merely because it is “derivative contraband”. Instead it must forfeit it using property forfeiture procedures. Washington has a statutory forfeiture procedure RCW 69.50.505(a)(2). Notice must be given within 15 days of seizure. RCW 69.50.505(c). If the property is personal property, one claming an interest in it then has 45 days to respond, and if a response is made, a hearing must be held. RCW 69.50.505(d), (e). Washington State's forfeiture statutes are exclusive. Unless statutory procedure are followed, a Washington court cannot order forfeiture and must release the petitioners' property. A court does not have inherent authority to forfeit property. See, State v. Alaway, 64 Wn. App. 796, 828 P.2d 591, p. 3 (4/2/92). The government gave no notice, so petitioners are not bound by any timeframe to reclaim their property which is still in impound in Everett Wa. I n the case of the seizure of an owner's property in pets for feeding and care, as in this matter, the seizure and forfeiture provisions in RCW 16.52.085 appear to track Washington State's civil forfeiture statute RCW 69.50 et seq. and federal law notice procedures. RCW 16.52.085 sets forth the method whereby an animal may be seized for protective custody for feeding and care. An animal may be seized by an officer only with a warrant UNLESS the animal is in an immediate life-threatening condition. If the officer decides that an animal is in an immediate life threatening condition to justify summary seizure of the animals, proper notice must be given to the owner of the animal by (1) posting at the place of seizure, and (2) personal service to a person residing at the place of seizure, OR by registered mail to the owner. The Notice must be written notice to the owner of the circumstances of the removal of the animals (without a warrant) and the legal remedies available under this chapter to the owner of the animal(s). The proper procedures by statute are enumerated below. Petitioners received no lawful notice and their due process rights were violated .... RCW 16.52.085: Removal of animals for feeding — Examination — Notice — Euthanasia. (1) If a law enforcement officer or animal control officer has probable cause to believe that an owner of a domestic animal has violated this chapter and no responsible person can be found to assume the animal's care, the officer may authorize, with a warrant, the removal of the animal to a suitable place for feeding and care, or may place the animal under the custody of an animal care and control agency. In determining what is a suitable place, the officer shall consider the animal's needs, including its size and behavioral characteristics. An officer may remove an animal under this subsection without a warrant only if the animal is in an immediate life-threatening condition. (2) If a law enforcement officer or an animal control officer has probable cause to believe a violation of this chapter has occurred, the officer may authorize an examination of a domestic animal allegedly neglected or abused in violation of this chapter by a veterinarian to determine whether the level of neglect or abuse in violation of this chapter is sufficient to require removal of the animal. This section does not condone illegal entry onto private property. (3) Any owner whose domestic animal is removed pursuant to this chapter shall be given written notice of the circumstances of the removal and notice of legal remedies available to the owner. The notice shall be given by posting at the place of seizure, by delivery to a person residing at the place of seizure, or by registered mail if the owner is known. In making the decision to remove an animal pursuant to this chapter, the officer shall make a good faith effort to contact the animal's owner before removal. (4) The agency having custody of the animal may euthanize the animal or may find a responsible person to adopt the animal not less than fifteen business days after the animal is taken into custody. A custodial agency may euthanize severely injured, diseased, or suffering animals at any time. An owner may prevent the animal's destruction or adoption by: (a) Petitioning the district court of the county where the animal was seized for the animal's immediate return subject to courtimposed conditions, or (b) posting a bond or security in an amount sufficient to provide for the animal's care for a minimum of thirty days from the seizure date. If the custodial agency still has custody of the animal when the bond or security expires, the animal shall become the agency's property unless the court orders an alternative disposition. If a court order prevents the agency from assuming ownership and the agency continues to care for the animal, the court shall order the owner to renew a bond or security for the agency's continuing costs for the animal's care. (5) If no criminal case is filed within fourteen business days of the animal's removal, the owner may petition the district court of the county where the animal was removed for the animal's return. The petition shall be filed with the court, with copies served to the law enforcement or animal care and control agency responsible for removing the animal and to the prosecuting attorney. If the court grants the petition, the agency which seized the animal must deliver the animal to the owner at no cost to the owner. If a criminal action is filed after the petition is filed but before the animal is returned, the petition shall be joined with the criminal matter. (6) In a motion or petition for the animal's return before a trial, the burden is on the owner to prove by a preponderance of the evidence that the animal will not suffer future neglect or abuse and is not in need of being restored to health. I. STATEMENT OF FACTS On January,6,2011, petitioner's pets were seized by Everett Animal Control with a warrant. The petitioner did not receive the warrant from the Everett Police officer nor were her rights ever read to her, the AC officer just told her orally she had a warrant to take the dogs. The petitioner was never allowed to see her animals or to even call to check on their welfare The animals were NEVER in a life threatening condition. No lawful notice as provided by RCW 16.52.085(3) was provided to the owners upon their seizure. No notice was posted, personally served or sent certified mail to petitioners who owned the animals. Petitioners had just lost their lease and were transitioning to a new place of residence. The pets were temporarily being contained inside and outside of the vehicle of petitioners on a friend's property. The pets had adequate food, water, ventilation, heat, shelter, and space during this transition. Petitioners were proactively seeking a new residence. Petitioners pets were being contained in the vehicle as petitioners were concerned about other dogs on the property where they were being allowed to stay temporarily. The petitioner slept outside in the vehicle at night with the dogs in case it got too cold so se could turn the heat on & spent a good part of the day in the vehicle with her animals as well. The petitioner has numerous bite marks all over her body from the complainants dogs as well The other dogs of the property owner had shown signs of aggression toward petitioner so petitioner was taking no chances. The dogs were being contained in the vehicle to prevent any fighting incident or other incident where the dogs might get loose or harmed. After a dispute with the owner of the property who had allowed petitioners to temporarily take up residence on her property, the owner of the property contacted law enforcement/animal control authorities from the City of Everett. Petitioner's pets were impounded by Everett Animal Control in the City of Everett. As it stands now, petitioners' pets 1) Hokie-8 yr old Kelpie dog, 2) Soffie-10 yr old mini- Schnauzer dog, 3) Misty 5yr old toy aussie dog, 4) Libby, 2yr old Pom mix dog 5) Taz are 5 yr old domestic shorthair cat 6) George, 12yr old Eskimo they put to sleep but won't return his body contained at Everett animal shelter. They are contained in cages and never let out for more than a few minutes. They are fed once a day and their urine and feces that accumulate within the cages is hosed or brushed out once a day. Employees have stated to petitioner that this is a horrible way to keep these animals. Petitioner are concerned that this long impound and legal process will permanently damage their pets if they are forced to remain incarcerated, as most are senior, the one who was killed was terminally ill & the impoundment caused his early demise, previously none of the petitioners animals had ever been away from her for more than a 36 hour period, most are pupp mill or feral, or shelter rescue animals. Pets suffer emotionally similar to humans kept incarcerated for long lengths of time. Petitioners consider their pets as part of their family. In essence, according to Everett Animal Control(law enforcement), the petitioners' pets were declared to be without water for 24 hours. The owners have not been provided lawful notice of the seizure or the reasons other than by phone after the animals were siezed , legal remedies available to them. The owners have still not been allowed to see the original report or any other reports that have been made, & was disallowed from getting one pets remanins & was told they are considered evidence A hearing to contest the allegations has not been held Euthanasia or other disposition of petitioner's dogs during this time is a very real possibility, and has already been carried out on one dog so far & they have threatened to put down Soffie as well who is becoming depressed & not eating well which I can not confirm because they won't the let petitioner see the dogs, nor tell the petitioner anything about them, the way the petitioner found out George was dead was because the prosecutor told her. At no time was she ever notified of is impedng demise & was never given the opportunity to prevent t or to be present, or even reclaim his body Forcing petitioner to pay impound fees for the summary seizure of their pets by authorities without procedural due process, is financially impossible for the petitioners to afford. Petitioners do not have the financial means to comply with any restrictions or impound fees in order to have their petss returned to their custody. Petitioners are fearful that if they are unable to pay these fees that their dogs will either be euthanized or otherwise disposed of by Everett Animal Control, because most would be deemed as unadoptable because of age, health & behavorial issues. Petitioners believe that since laws were violated in order to seize their pets that the pets should be released unconditionally back to the care, custody and control of petitioners. Meanwhile, petitioners have secured other adequate housing for themselves and their pets and petition the Court for return of their household pets. Keeping their pets in a vehicle during the transition was never meant to be a permanent residence for their pets. However, it was the best residence petitioners could provide in the interim while searching for a new residence for all of them. II. LAW AND ANALYSIS a. Did the City of Everett/ animal control authorities have a constitutionaly defective notice and seizure procedure? Was the seizure unlawful under statute? RCW 16.52.100 and RCW 16.52.085 are controlling in this case as they pertain to animals being seized for feeding and care from owners. Notice requirements are set forth in these statutes and in other statutes such as RCW 69.50 et s eq. when government takes possession of personal property. The City of Everett/animal care and control authorities did not follow lawful statutory procedure when they seized petitioners' pets. The animals were not in a life-threatening condition, had not been withheld water for 36 hours pursuant to statute. Subsequent to seizure of the petitioner's pets, proper statutory notice procedures were not followed by posting, personal service or registered mail to the owners. Since proper statutory procedures pertaining to the seizure of animals was not followed, and subsequent notice to petitioners, petitioners' animals should be released to them immediately. The Court of Appeals in Mansour v. King County, 131 Wn. App. 25 (2006) held that “an agency seeking to enforce a removal order must prove both the violation and the remedy it has imposed by a preponderance of the evidence.” Mansour at 266. The city of Everett/animal care and control authorities procedural due process and notice procedures are defective. The owners in this case were provided even less procedural rights than the rights provided to the owner in Mansour. The rights provided to petitioners are constitutionally defective as well. 2. Should the City of Everett/animal care and control authorities release the petitioner's pets back to their care, pending resolution of these matters? Petitioners make assurances to this court that the pets will now be in a secure place of abode. Petitioners did not allow their pets to reside in a situation that they believed was life-threatening however, it was the best temporary residence that they could provide to their pets while they were transitioning to a new place of residence after losing their lease. They have now secured that new residence and a safe place of abode for their pets. 3. Should the city of Everett/animal control authorities be restrained from euthanizing petitioner's pets or otherwise transferring or disposing of them? Petitioners are requesting a restraining order be granted to keep their household pets, dogs and cats, from being euthanized or otherwise transferred or disposed of by authorities who have impounded the animals. The seizure, impound, and notice was unlawful and defective. If no restraining order is served on animal control authorities or law enforcement, petitioners are fearful that their pets will be euthanized as petitioners could not hope to comply financially with paying all of the impound fees for their care during the past 39 days after they were seized. III. CONCLUSION Because the Cityof Everett/animal control authorities have clearly violated the law and notice requirements pertaining to seizure of animals and personal property of the petitioners in their pets, and the procedural rights of the petitioners are constitutionally defective, petitioners request that the euthanizing of petitioner's pets be stayed by means of an emergency restraining order. Because the petitioner's pets would be irreparably harmed by remaining in the custody of the city of Everett/animal care authorites pending resolution of this matter, and petitioners can and will at this time provide a safe and secure home for the pets, this court should order the city of Everett/animal care and control to release the pets of the petitioners forthwith. It is the right thing to do. The petitioner is being charged with not providing water on a 24 hour basis when the Animal Control officer arrived with the Everett Police there was in fact a water container sitting on the car & still about 1/8 cup of water in their water bowl, The reason they have given petitioner for removing her animals & the charge is very specifically not providing water on a 24 hour basis under Everett Municipal Code which is in clear conflict with the Revised Code of Washington in two matters 1) Everett Municipal Code 6.04.070 Prohibited conduct. C. Offenses Relating to Cruelty. It shall be unlawful for any person to: 2. Under circumstances not amounting to first degree animal cruelty as defined in RCW 16.52.205, fail to provide an animal with sufficient good and wholesome food and a constant source of clear potable water, proper shelter and protection from the weather, veterinary care when needed to prevent suffering, and with humane care and treatment; Revised Code of Washington RCW 16.52.310 Dog breeding — Limit on the number of dogs — Required conditions — Penalty — Limitation of section — Definitions. (d) Provide dogs with easy and convenient access to adequate amounts of clean food and water. Food and water receptacles must be regularly cleaned and sanitized. All enclosures must contain potable water that is not frozen, is substantially free from debris, and is readily accessible to all dogs in the enclosure at all times. The Everett Minicipal Code is in direct conflict wth the Revised Code of Washington West's Revised Code of Washington Annotated Currentness. Title 35. Cities and Towns. Chapter 35.27. Towns. 35.27.370. Specific powers enumerated Citation: WA ST 35.27.370 Citation: West's RCWA 35.27.370 Last Checked by Web Center Staff: 09/2010 Summary: This Washington statute provides that the council of said town shall have power to pass ordinances not in conflict with the Constitution and laws of this state, or of the United States. Specifically, the council may regulate, restrain, or prohibit the running at large of any and all domestic animals within the city limits, or any part or parts thereof, and to regulate the keeping of such animals within any part of the city; to establish, maintain and regulate a common pound for estrays, and to appoint a poundkeeper, who shall be paid out of the fines and fees imposed on, and collected from, the owners of any impounded stock. Statute in Full: The council of said town shall have power: (1) To pass ordinances not in conflict with the Constitution and laws of this state, or of the United States; (7) To impose and collect an annual license on every dog within the limits of the town, to prohibit dogs running at large, and to provide for the killing of all dogs found at large and not duly licensed; (14) To impose fines, penalties and forfeitures for any and all violations of ordinances, and for any breach or violation of any ordinance, to fix the penalty by fine or imprisonment, or both; but no such fine shall exceed five thousand dollars, nor the term of imprisonment exceed one year, except that the punishment for any criminal ordinance shall be the same as the punishment provided in state law for the same crime; or to provide that violations of ordinances constitute a civil violation subject to a monetary penalty, but no act which is a state crime may be made a civil violation; (16) To make all such ordinances, bylaws, rules, regulations and resolutions not inconsistent with the Constitution and laws of the state of Washington, as may be deemed expedient to maintain the peace, good government and welfare of the town and its trade, commerce and manufacturers, and to do and perform any and all other acts and things necessary or proper to carry out the provisions of this chapter. CREDIT(S) [2008 c 129 § 3, eff. June 12, 2008; 1993 c 83 § 7; 1986 c 278 § 6; 1984 c 258 § 805; 1977 ex.s. c 316 § 25; 1965 ex.s. c 116 § 15; 1965 c 127 § 1; 1965 c 7 § 35.27.370. Prior: 1955 c 378 § 4; 1949 c 151 § 1; 1945 c 214 § 1; 1941 c 74 § 1; 1927 c 207 § 1; 1925 ex.s. c 159 § 1; 1895 c 32 § 1; 1890 p 201 § 154; Rem. Supp. 1949 § 9175.] 2) 16.52.207 Animal cruelty in the second degree. (4) In any prosecution of animal cruelty in the second degree under subsection (1) or (2)(a) of this section, it shall be an affirmative defense, if established by the defendant by a preponderance of the evidence, that the defendant's failure was due to economic distress beyond the defendant's control. Respectfully Submitted this 15th day of February, 2011. By: Brandia Taamu, Petitioner Pro Se DECLARATION Pursuant to GR 13, I declare under penalty of perjury of the laws of the State of Washington that I am competent to testify and that the claims in the Statement of Facts above are true and correct. Signed at Everett, Washington this 15th day of February, 2011. _______________________________________ By: Brandia Taamu, Petitioner Pro Se