IN THE MUNICIPAL COURT FOR THE CITY OF EVERETT, SNOHOMISH COUNTY, STATE OF WASHINGTON CITY OF EVERETT, ) ) Plaintiff, ) ) v.

) BRANDIA P. TAAMU, ) ) Defendant. ) ____________________________ ) No. (Clerk's Action Required) MOTION TO DISMISS INFORMATION AND RETURN PETS; ALTERNATIVEY TO SUPPRESS EVIDENCE DERIVED FROM SEARCH AND SEIZURE UNDER UNCONSTITUTIONAL EVERETT ORDINANCES

COMES NOW Defendant Brandia P. Taamu, by and through her attorney of record, and moves to dismiss the information in this case against her and to return defendant's pets to her. Alternatively, defendant requests that EMC _____ be declared unconstitutional and that all evidence derived from the unlawful search and seizure under EMC______ be suppressed in this matter. Defendant's motion is based upon RCW 16.52.085 (WA Feeding and Care statute); EMC _______, the Fourteenth Amendment, Washington State Constitution, Mathews v. Eldridge, 424 U.S. 319 (1976), the attached memorandum, other authorities, and the records and files herein. DATED this ____ day of October, 2011. By_____________________________________ , WSBA#________

Motion to Dismiss - 1

MEMORANDUM OF AUTHORITIES Defendant Brandia Taamu's ownership interest in the pets seized from her by the City of Everett and its impound agent is a protected property interest under the Fourteenth Amendment. Logan, 455 U.S. at 434, 102 S. Ct. at 1156. The State may not destroy a property interest without first giving the putative owner an opportunity to present his claim of entitlement. Goss v. Lopez, 419 U.S. 565, 579, 95 St. Ct. 729, 738 (1975). Due process requires some kind of notice and some kind of hearing. A pre-deprivation hearing is not required in all circumstances, however. For example, where the State must of a necessity act quickly. This was not the case here. Or, where the degree of deprivation is not serious. Also, this was not the case here. Ms. Taamu was never given the required notice of seizure by the City of Everett impounding officer, and her legal remedies to petition the District Court for return of her animals and/or to determine the reasonableness of boarding fees. The Mathews test is often used to determine what kind of process is required. Mathews v. Eldridge, Id. See, also Mansour v. King County, 128 P.3d 1241 (Wash. App. Div. 1 2006) There can be no dispute than an animal owner has a substantial interest in maintaining his rights to a seized animal, whether monetary or in the form of companionship. In this case, there is a risk that the owner will suffer a permanent and wrongful deprivation of his rights under a system and a City of Everett ordinance that does not provide for any notice of seeizure or legal remedies to the owner for such confiscation, hearing or redemption process. Requiring the City of Everett to provide notice of seizure and legal remedies available to owner, and the opportunity for a hearing on the seizure predeprivation or post-deprivation, is not a significant burden. It is the City of Everett's custom and practice under its animal ordinances to not provide a notice of seizure and legal remedies to owner, or a pre-deprivation or post-deprivation hearing concerning the owner's property interests in pets and perhaps disposal of them. The City of Everett ordinances must Motion to Dismiss - 2

provide an owner notice of seizure under RCW 16.52.085 and his or her legal remedies, as follows ... : (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 court-imposed 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. When a court has prohibited the owner from owning or possessing a similar animal under RCW 16.52.200(3), the agency having custody of the animal may assume ownership upon seizure and the owner may not prevent the animal's destruction or adoption by petitioning the court or posting a bond. (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. Under state law, the City of Everett ordinances must provide for notice and a swift postdeprivation hearing on the seizure of owner's pets and impound for feeding, care and examination.

Motion to Dismiss - 3

Under Washington statutes, the person whose property was seized with or without a warrant may petition for its return in the District Court for the county in which the property was seized, as above. Defendant has filed such a petition despite any lawful lack of notice by the City of Everett to Defendant at the time of seizure of her pets. Defendant has also repeatedly been denied a postdeprivation hearing and due process by the City of Everett when she has filed petitions to return her animals in municipal, district and superior courts in the City of Everett and Snohomish County. The ownership rights of the defendant Ms. Taamu were terminated by the seizure, the animals have apparently been treated as strays by the City and placed in foster care or have been put up for adoption, and/or were otherwise disposed of. One aged pet animal of defendant, George, who passed away from cancer after being impounded in the City Shelter, was outrageously necropsied, dissected, body parts tagged, photographed, and his body then misplaced or lost by City of Everett veterinarian or employees causing great emotional distress to the Defendant. Defendant, who held an important property interest in George's body, as well as her Native American belief and custom that George's body not be desecrated in such a way and received a respectful burial, has been damaged as a result of these unreasonable and incomprehensible actions by the City of Everett. The City of Everett has failed to provide Defendant with due process prior to, or following, each of these deprivations of property in the sentient property of Ms. Taamu. Defendant alleges that the City of Everett animal ordinances that provide for seizure of an animal of an owner denied defendant due process of law because the ordinances did not provide for notice of seizure and her legal remedies, or a hearing pre- or post-deprivation in compliance with Washington state law, federal and state constitutions, and other authorities. Neither did the City of Everett provide Ms. Taamu with any lawful notice. Due process requires that an owner have notice and the opportunity to be heard prior to or after seizure and/or destruction of a dog. Fuentes v. Shevin Motion to Dismiss - 4

(1972) 407 U.S. 67, 81-82, 92 S.Ct. 1983, 1994-1995, 32 L.Ed.2d 556. Procedural due process imposes constraints on governmental decisions depriving individuals of liberty or property interests. Mathews v. Eldridge (1976) 424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed.2d 18. Dogs, being personal property and having economic value, are also included within its reach. Aside from their economic value, however, "... it is equally true that there are no other domestic animals to which the owner or his family can become more strongly attached, or the loss of which will be more keenly felt." Phillips v. San Luis Obispo County Dept., California 228 Cal.Rptr. 101 Cal.App. (2 Dist.,1986) cf Johnson v. McConnell (1889) 80 Cal. 545, 549, 22 P. 219. We recognize that the bond between pet and owner often runs deep and that many people consider pets part of the family. Mansour v. King County, supra. When it is acting in an official capacity, a quasi-public organization such as a humane society is subject to the same constitutional requirements as any other government agency. That means it must respect dog owners' due process rights, discussed above. Procedural due process requires a two-step analysis. First, whether the plaintiff was deprived of a constitutionally protected interest in life, liberty, or property. If he was, we then determine what process he was due with respect to that deprivation. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 1153-54, 71 L.Ed.2d 265 (1982); Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir.1996). What process is required in a particular context or a given set of circumstances depends upon balancing the factors laid out in Mathews v. Eldridge: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). In this case, Ms. Taamu could not even inspect her own animals after seizure and impound or Motion to Dismiss - 5

have her own veterinarian examine her pets' physical condition, timely following their seizure by the City of Everett. Defendant was not permitted access to her pets while in the City of Everett impound facility. Therefore, due to this obstruction, Ms. Taamu cannot effectively dispute some of the County's evidence that it has produced with respect to the condition of her pets after they were seized and impounded, or to impeach or rebut the inculpatory statements of certain humane officers. Prior to applying the Mathews balancing test to the case at hand, it is important to understand the exact nature of Ms. Taamus's procedural due process claims. Ms. Taamu has two types of procedural due process claims. In the first , Ms. Taamus challenges the constitutional adequacy of an established City procedure. See, e.g., Logan, 455 U.S. at 436, 102 S.Ct. at 1158. In the second type, Ms. Taamu's challenge focuses on a city official's failure to provide the plaintiff the process he was due under the circumstances of the search and seizure. See, e.g., Zinermon v. Burch, 494 U.S. 113, 117, 110 S.Ct. 975, 979, 108 L.Ed.2d 100 (1990). Consistent with Ms. Taamu's allegation that it is the City's custom or policy not to provide an owner notice or an opportunity for a hearing prior to or post-seizure of the owner's pets terminating the owner's property interest in animals and disposing of them; this claim is a challenge to established City of Everett procedure. Ms. Taamu's "Second Claim for Relief," concerning the alleged conspiracy between Animal Control Officer Trask, City of Everett law enforcement, and the Everett courts to violate Ms. Taamu's due process rights by not providing her notice of seizure, her legal remedies or an opportunity to petition for a hearing, involves a challenge to the inadequacy of the process provided by those officials. It is only logical to determine what state law authorizes in the form of established procedure before determining whether the city officials failed to provide an individual with the process he was due. See, e.g., Zinermon, 494 U.S. at 136, 110 S.Ct. at 989 (state officials violated due process where they failed to provide hearing and state law provided them "broadly delegated, uncircumscribed power Motion to Dismiss - 6

to effect the deprivation at issue"). Notice and a hearing provide the owner with the opportunity to challenge the legality of the original seizure of his animal, as well as the validity of any costs the state is attempting to assess for the seizure and care of the animal(s). Requiring that the City provide notice, legal remedies, and an opportunity for a hearing post seizure or terminating an owner's interest is not a significant burden. We next consider whether established City procedure authorized the process the Constitution requires. Ms. Taamu alleges that the City of Everett has a custom or policy of not providing an owner notice or an opportunity for a hearing after seizing his/her property, and before terminating her property interest and disposing of her animals. Defendant's challenge is that established Everett municipal procedure for seizure failed to provide for notice of seizure, legal remedies, and/or an opportunity for a hearing. Ms. Taamu argues that several provisions in the Washington state statutes require that the City of Everett provide an owner the opportunity for notice following seizure, legal remedies, and a hearing post seizure and prior to terminating her rights in his animals. The Everett Municipal statutes are silent on this point, and therefore the City has a custom or policy of not providing an opportunity for a hearing. Should there be an absence of a formal requirement that the City provide an opportunity for notice and a hearing in an ordinance, the City's custom of not doing so would translate into an informal but established City procedure. See Monell, 436 U.S. at 695, 98 S.Ct. at 2037-38; Easter House, 910 F.2d at 1403. On its face, EMC Title 6.04 et seq. and the City's custom and practice does not provide an owner with a notice of seizure, his/her legal remedies, or a hearing to challenge the legality of the seizure or the reasonableness of incurred boarding expenses. Or, whether the owner is able to care properly for her own animals after a determination by her own veterinarian at the time of impound. EMC Title 6.04 requires that the owner "pay the expenses incurred" in order to redeem his animal. Motion to Dismiss - 7

6.04.090 Shelter operationImpoundment proceduresRelease and disposal. A. The manager shall operate, maintain or provide an adequate facility to receive and care for any animal delivered to his/her custody for disposition under provisions of this chapter, which facility shall be accessible to the public during reasonable hours for the conduct of necessary business concerning impounded animals. B. Any animal may be impounded and held at the shelter when it is the subject of a violation of this chapter, when an animal requires protective custody and care for mistreatment or neglect by its lawful owner, or when otherwise ordered impounded by a court. C. An animal is deemed to be impounded from the time the manager or his designee, including Everett police personnel and contracted agents such as on-call veterinarian hospitals, takes physical custody of such animal. D. The manager or any animal control officer or police officer may enter the private unenclosed property of another, with or without warrant, when in hot pursuit, to take possession of any animal observed at large. E. Any person who finds and harbors a dog or cat, which is not lawfully their property and/or without knowing the animal owners identity, shall notify the animal control shelter and furnish a description of the animal. The finder may surrender the animal to the animal control shelter or retain its possession, subject to demand of the manager of animal control. Records of reported findings shall be retained by the manager and made available to public inspection. Any finder, in addition to reporting as provided in this section, shall, within seven days of the finding, cause to be published in a newspaper of general circulation, once each week for two consecutive weeks, notice of the finding with description of the animal. If, within thirty days of the finding report made to animal control, no person makes claim upon the finder for return of the animal, the finder who retains possession shall obtain a license as required in this chapter and thus shall become the legal owner. F. Impoundment is subject to the following holding period and notice requirements: 1. Any animal wearing a current license tag from a jurisdiction within the state shall be held for one hundred forty-four hours (six days) from time of impoundment; the impounding officer shall make reasonable effort by telephone to give notice of impoundment to the owner and, if unsuccessful, shall mail written notice to the last known address of the owner advising of the impoundment and the date by which redemption must be made. 2. Any animal not wearing a current license shall be held for seventy-two hours (three days) from time of impoundment before any disposition may be made of such animal. 3. Litters of kittens and puppies, brought in as abandoned, may be disposed of immediately upon custody, at the discretion of the manager. Motion to Dismiss - 8

4. Animals held for periods prescribed in this section, and not redeemed by the owner, shall become the property of the city. 5. Animals delivered for impoundment by a peace officer who removed such animal from possession of a person in custody of the peace officer shall be held for the period prescribed in subsection (F) (1) of this section. G. Impoundment and Disposition of Animals. 1. Any impounded animal shall be released to the owner upon payment of impoundment, care and license fees unless in the discretion of the manager or his/her designee there is an ongoing investigation of a violation of this chapter or state law. The manager or his/her designee may release the animal to the owners authorized representative; full identification of the owner and their authorized representative must be provided to animal control prior to release. 2. Notwithstanding the provisions of subsection (G)(1) of this section, no impounded animal shall be released to the owner until the owner establishes that any penalties, fines or forfeitures owed by the owner for violation of this chapter have been satisfied. 3. Any animal held for the prescribed period and not redeemed by its owner, and which is neither dangerous nor unhealthy, may be released for adoption, subject to the following conditions: a. The adoptive owner agrees to furnish proper care to the animal in accord with this chapter; b. Payment of required fees, including any medical care costs incurred during impoundment; and c. All animals will be altered (i.e., spayed or neutered) prior to completion of the adoption process. This includes receipt of all applicable fees b. This annual fee shall reflect all costs to operate the Everett animal shelter, calculated over a twelve-month period, starting on July 1st, and ending June 30th, each year. 9. Fees imposed under this section include all applicable taxes. (Ord. 2799-04 1, 2004; Ord. 2684-03 4, 2003: Ord. 2394-99 8, 1999: Ord. 1810-91 10, 1991)

6.04.110 Administration and enforcement by manager.

A. It is the responsibility of the manager of Everetts department of animal control and those he/she designates to enforce the provisions of this chapter. B. The manager may promulgate such rules and regulations as deemed necessary to implement, administer and enforce provisions of this chapter. C. The manager shall be empowered to exercise the authority of peace officers to extent necessary to enforce this chapter, which powers shall include issuance of citations, seizure and impoundment Motion to Dismiss - 9

of animals subject to this chapter, including pursuit onto city-owned property, vacant property and unenclosed private property and subsequent impoundment. D. Persons designated by the manager to enforce this chapter shall bear satisfactory identification reflecting the authority under which they act, which identification shall be shown to any person requesting the same. E. The manager may waive any of the standards for licensing of facilities as he/she deems appropriate to meet peculiar requirements of a particular breed of animal. F. The manager shall be authorized to reduce or waive any fee prescribed by this chapter except those related to licensing. (Ord. 1810-91 11, 1991) Title 6.04.070 .... C. Offenses Relating to Cruelty. It shall be unlawful for any person to: .... 10. Under circumstances not amounting to first degree animal cruelty as defined in RCW 16.52.205, confine an animal within or on a motor vehicle at any location under such conditions as may endanger the health or well-being of the animal, including but not limited to extreme temperatures, lack of food or water, or confinement with a dangerous animal. Any animal control or peace officer is authorized to remove any animal from a motor vehicle, at any location, when he/she reasonably believes it is confined in such conditions as described above. Any animal so removed shall be delivered to the animal control shelter after the removing officer leaves written notice of such removal and delivery, including the officers name, in a conspicuous, secure location on or within the vehicle; The Everett Municipal Ordinances under Title 6 above do not include any language from which we could infer that the ordinances authorize officials to provide an opportunity for a hearing to challenge the legality of the seizure, or the reasonableness of the boarding charge. Finally, defendant argues that RCW 16.52.085 et seq., which provides that a person whose property was seized with or without a warrant may Petition for its return in the District Court for the county in which the property was seized, gave the City of Everett authority to provide Ms. Taamu with opportunity for notice of the seizure, her legal remedies, and right to petition for the animals return

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through a hearing to contest the seizure. This statute relates to the City's seizure and/or disposal of animals seized on the basis of neglect. RCW 16.52.085 purports to establish procedural safeguards for the City's determination of an owner's rights in his pets. Thus, state statute can be interpreted as requiring the City of Everett municipal ordinances to provide for notice and an opportunity for a hearing following seizure to determine defendant's property interest in his seized animals, reasonableness of boarding charges, and possible termination of defendant's property interest. However, the City of Everett ignored this procedure, denying defendant appropriate due process safeguards. In this case, Defendant Ms. Taamu is left with the conclusion that the City of Everett ordinances under Title 6.04 et. seq., under which Ms. Taamu's pets were seized and the information was filed, fails to require that animal owners be provided notice of seizure, his/her legal remedies concerning such a seizure, and an opportunity to Petition and have a hearing to determine ownership rights, boarding fees, condition of the pets at seizure and impound, whether the owner or a representative can adequately care for the animals, etc. Because an animal owner is entitled to a pre-deprivation and post-deprivation hearing and because Ms. Taamu alleges that the City of Everett has an informal, established procedure of deprivation without providing the opportunity for notice and a hearing, Ms. Taamu respectfully requests that the City of Everett ordinance under which she was searched and her pets seized be declared unconstitutional. It does not comply with state law and procedural due process safeguards. Ms. Taamu further requests that this court invalidate the search and seizure upon which the information filed against defendant was premised due to the unconstitutionality of statutes under which a warrant was issued and property was seized. Alternatively, Ms. Taamu requests that all evidence flowing from this unconstitutional search and seizure be suppressed as Ms. Taamu has a viable due

Motion to Dismiss - 11

process claim of an inadequate, established procedure by the City of Everett as a result of the unconstitutionality of EMC 6.04 et seq.. There is no pre- or post-deprivation safeguard in fact it is negligible in preventing the kind of deprivation at issue. The Everett animal impound ordinances fail to adequately define the scope of a humane officer's enforcement powers - with an ambiguous and unconstitutional grant of authority. Carrera v. Bertaini, 63 Cal.App.3d 721, 134 Cal.Rptr. 14, concerned an ordinance and penal code section permitting the impoundment and sale of neglected farm animals. The court declared the ordinance invalid because it failed to provide reasonable notice and a hearing either before or after seizure: "As a matter of basic fairness, to avoid the incurrence of unnecessary expenses appellant was entitled to a hearing before her animals were seized or, if the circumstances justified a seizure without notice and a hearing, she was entitled to a prompt hearing after the animals were seized." Carrera, 63 Cal.App.3d 721, 729, 134 Cal.Rptr. 14. See also Anderson v. George (1977) 100 W.Va. 76, 233 S.E.2d 407, 409 invalidating seizure, without notice or hearing, of abandoned or neglected animals. The City of Everett ordinances under EMC 6.04 et. seq., nowhere provide for a hearing to defendant regarding the lawfulness of seizure and impound of her pets. Nothing in these statutes legitimizes the City's actions to deny Ms. Taamu procedural due process safeguards. Ms. Taamu has claimed ownership of her seized pets and has vigorously contested the seizure under Washington State statutes by demanding a hearing to no avail. Decisions construing the federal and state due process guarantees generally require that an individual receive notice and some form of hearing before he is deprived of his property or liberty. Fuentes v. Shevin, supra, 407 U.S. 67, 81-82, 92 S.Ct. 1983, 1994-1995, 32 L.Ed.2d 556. The constitutionality of the Everett ordinance or statute justifying seizure rests upon its provision for notice of seizure and a prompt post-seizure hearing to defendant.

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The requirement for notice of seizure and a hearing cannot be implied from the Everett municipal ordinance. In fact, quite the contrary. Here the City of Everett Municipal ordinances do not provide for any pre- or post-seizure hearing to Ms. Taamu, and there is no room to imply the necessity of notice and a hearing under its construction. It is well established that the statute or ordinance itself must provide for notice and a hearing and that a gratuitous hearing does not cure a deficient law. Coe v. Armour Fertilizer Works (1915) 237 U.S. 413, 424-425, 35 S.Ct. 625, 629, 59 L.Ed. 1027. Any hearing granted as a matter of discretion is no substitute for due process. 'It is not enough that the owners may by chance have notice, or that they may as a matter of favor have a hearing. The law must require notice to them, and give them the right to a hearing and an opportunity to be heard.' " Coe v. Armour Fertilizer Works, supra, 237 U.S. 413, 424-425, 35 S.Ct. 625, 629, 59 L.Ed. 1027. The rule is well settled that to constitute due process of law in regard to the taking of property, the statute or ordinance should give the parties interested some adequate remedy for the vindication of their rights. A provision in the statute or ordinance providing for notice of seizure, and the owner's legal remedies after confiscation and a hearing, ensures that the response of the administrative entity will be a settled and uniform, and not an haphazard, procedure. The City of Everett municipal ordinances under which Ms. Taamu's pets were seized is unconstitutional for failure to provide for notice, defendant's legal remedies following a seizure of pets, and a hearing either before or after the seizure of pets pursuant to RCW 16.52.085 et seq. The ordinance in question here should end, "not with a bang but a whimper." 1 The ordinances at issue for seizing and impounding animals are unconstitutional. Defendant Ms. Taamu is entitled not only to the immediate return of her pets, but to dismissal of the information against her. Alternatively the search should be invalidated and any evidence derived from the search and seizure of her pets 1. See The Hollow Men (1925), with apologies to T.S. Eliot. Motion to Dismiss - 13

suppressed. DATED this ____ day of October, 2011. By_____________________________________ , WSBA #____________

Motion to Dismiss - 14