1 2 3 4 5 6 7 IN THE MUNICIPAL COURT OF THE CITY OF SEATTLE KING COUNTY, WASHINGTON 8 9 10 11 12 13 14 15 16 CITY OF SEATTLE, Plaintiff, Nos. VS. MOTION TO VACATE JUDGMENTS AND DISMISS MARIJUANA SEATTLE MUNICIPAL COURT CHARGES MARIJUANA POSSESSION DEFENDANTS,' Defendant. 17 18 19 A. MOTION Pursuant to CrRLJ 7.8(b)(5), the City moves to vacate the judgments in these 20 21 22 23 cases. Pursuant to CrRLJ 8.3(a), the City moves to dismiss the complaints in each case. The City has discussed this motion with the Department of Public Defense (DPD), which supports this motion and will file a response in support. 24 25 26 :~illf t1a 0 111ts IZ.y11I'% 9004 1 oleo 81►`[.Y119 0311% M0 201[$111 [~7►`fy Peter S. Holmes states as follows: 27 28 ' The names of the defendants subject to this motion are attached in Exhibit A. 29 MOTION TO VACATE JUDGMENTS AND DISMISS MARIJUANA CHARGES - I Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206)684-7757 1 1. I am the City of Seattle's elected City Attorney and, together with Assistant City 2 Attorney 3 Kelly Harris and other attorneys in the Criminal Division, represent the City of Seattle in these cases. I am over 18 years of age, am competent to be a witness and testify, 4 and 5 have personal knowledge of the facts stated herein. 6 2. The cases subject to this motion involve convictions during the years 1996 7 through 8 2010 for Possession of Marijuana under either RCW 69.50.401(e) or RCW 69.50.4014. 9 10 When I first became City Attorney, I made good on my promise to stop prosecuting marijuana possession cases. 11 12 3. Initiative 502, approved by Washington state's voters on November 6, 2012, 13 eliminated 14 all state criminal penalties for possession of personal use amounts marijuana by adults.2 15 16 4. A drug conviction, even for the misdemeanor offense of Possession of 17 Marijuana, can have significant negative collateral consequences affecting a person's 18 employment 19 programs, 20 21 22 likely 23 travel, and immigration status. 5. According to a report by the ACLU, African-Americans are 3.73 times more to be arrested for possession of marijuana than Caucasians, even though both 24 groups 25 opportunities, education options, qualification for government benefits and consume marijuana at similar rates. The perception among many persons that enforcement of drug laws discriminates against African-Americans has profound adverse 26 effects 27 on their cooperation with law enforcement, respect for the law and participation in 28 29 MOTION TO VACATE JUDGMENTS AND DISMISS MARIJUANA CHARGES - 2 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206)684-7757 the court system. PJ 3 6. Now that Washington's legal marijuana regulatory system is in effect, I believe vacating and dismissing all prior adult marijuana possession convictions from the Seattle 4 5 6 Municipal Court, all of which were originally prosecuted by the Seattle City Attorney's Office, best serves the interests of equity and justice. 7 8 9 10 C. STIPULATION Solely for the purposes of this motion, the City and DPD stipulate that noncitizen defendants convicted of marijuana possession between 1996 and 2010 were not 11 12 13 adequately advised of immigration consequences as required by Padilla v. Kentucky, 559 U.S. 356 (2010) and State v. Sandoval, 171 Wn.2d 163, 249 P.3d 1015 (2011). 14 101Uu 101►0 Y 15 16 17 1. Since the conduct upon which the conviction in these cases was based is no longer unlawful and to promote the interests of fairness and justice, the Court should vacate the judgments. 18 19 20 21 MA 23 24 25 26 CrRLJ 7.8(b) provides: Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party from a final judgment, order, or proceeding for the following reasons: (5) Any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time and for reasons (1) and (2) not more than 1 year after the judgment, order, or proceeding was entered or taken, and is further subject to RCW 10.73.090, .100, .130, 27 28 2 See RCW 69.50.401(3). ig MOTION TO VACATE JUDGMENTS AND DISMISS MARIJUANA CHARGES - 3 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206)684-7757 and .140. A motion under this section does not affect the finality of the judgment or suspend its operation. 2 3 The prosecution may bring a motion under this rule, even though it was the 4 prevailing 5 party at trial. In State v. Hall,3 the court held that the State had the authority under CrR 7.8(b)(5) (identical to CrRLJ 7.8(b)(5)) to move to vacate the defendant's 6 felony 7 murder conviction that was invalid under In re Personal Restraint of Andress.'The 8 language of CrR 7.8 does not restrict either party's ability to move for relief.' Likewise, 9 the 10 language of CrRLJ 7.8 does not restrict the City's ability to move for relief. 11 12 Relief under CrRLJ 7.8(b)(5) is limited to extraordinary circumstances not covered by any other section of the rule and must involve circumstances that did not exist at the 13 time 14 15 is 16 the judgment was entered.' Vacating a conviction for a crime based on conduct that no longer criminal is not covered by any other section of CrRLJ 7.8 and the legalization of Possession of Marijuana occurred years after the judgments were entered in these 17 cases. 18 19 Vacating these convictions also serves as evidence that the criminal justice system 20 acknowledges 21 22 and the racial disproportionality of enforcement of drug laws and is capable willing to respond to that concern. Steps to refute the perception of racial 23 discrimination in the criminal justice system, regardless of the validity of that perception, 24 25 26 3 162 Wn.2d 901, 905, 177 P.3d 680 (2008). 4 147 Wn.2d 602, 56 P.3d 981 (2002). 27 'Hall, 162 Wn.2d at 905. 6 See State v. Florencio, 88 Wn. App. 254, 28 259, 945 P.2d 228 (1997), review denied, 134 Wn.2d 1026 (1998); State v. Aguirre, 73 Wn. App. 682, 688, 871 P.2d 616, review denied, 124 29 MOTION TO VACATE JUDGMENTS AND DISMISS MARIJUANA CHARGES - 4 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-7757 serves to foster cooperation with law enforcement officers, respect for the law and greater participation in the court system. For these reasons, the court should vacate the judgment in these cases. 2. RCW 9.96.060 does not apply to a motion brought by the City to vacate a conviction. The statute authorizing vacation of a non-felony conviction addresses a motion to vacate a conviction made by the defendant, as opposed to the prosecution. RCW 9.96.060 10 11 12 13 14 15 16 17 18 19 provides, in pertinent part: (1) Every person convicted of a misdemeanor or gross misdemeanor offense who has completed all of the terms of the sentence for the misdemeanor or gross misdemeanor offense may apply to the sentencing court for a vacation of the applicant's record of conviction for the offense. . (3) Subject to RCW 9.96.070, every person convicted of prostitution under RCW 9A.88.030 who committed the offense as a result of being a victim of trafficking, RCW 9A.40.100, promoting prostitution in the first degree, RCW 9A.88.070, promoting commercial sexual abuse of a minor, RCW 9.68A.101, or trafficking in persons under the trafficking victims protection act of 2000, 22 U.S.C. Sec. 7101 et seq. may apply to the sentencing court for vacation of the applicant's record of conviction for the prostitution offense.... 20 21 22 23 24 25 (4) Every person convicted prior to January 1, 1975, of violating any statute or rule regarding the regulation of fishing activities ... may apply to the sentencing court for vacation of the applicant's record of the misdemeanor, gross misdemeanor, or felony conviction for the offense. The express language of this statute allows "[e]very person convicted" to apply to vacate a conviction. The statutory language does not include the prosecuting authority. 26 27 Under the age old rule of statutory construction, expressio unius est exclusio alterius, ("to 28 29 1 Wn.2d 1028 (1994). MOTION TO VACATE JUDGMENTS AND DISMISS MARIJUANA CHARGES - 5 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206)684-7757 express or include one thing implies the exclusion of the other"), where a statute 11 3 specifically designates the things upon which it operates, there is an inference that the Legislature intended all omissions.7 RCW 9.96.060 does not apply to a motion brought by 4 5 6 7 8 the City to vacate a conviction. 3. To promote the interests of justice, the Court should dismiss the Possession of Marijuana charges. CrRLJ 8.3(a) provides: 9 10 11 12 On Motion of Prosecution. The court may, in its discretion, upon motion of the prosecuting authority setting forth the reasons therefor, dismiss a complaint or citation and notice. Dismissing this charge is consistent with, and something of a corollary to, the 13 14 discretion of the City Attorney to charge this offense initially. A prosecutor's inherent 15 charging discretion necessarily is broader than a mere consideration of sufficiency of 16 17 18 19 evidence and likelihood of conviction, and this "most important prosecutorial power" allows for the consideration of individual facts and circumstances when deciding whether to enforce criminal laws, and permits the prosecuting attorney to seek individualized 20 21 22 23 justice; to manage resource limitations; to prioritize competing investigations and prosecutions; to handle the modern proliferation of criminal statutes; and to reflect local values, problems, and priorities.' Likewise, dismissing this charge reflects Seattle's 24 25 values and recognizes the negative collateral consequences of a drug conviction, 26 27 28 State v. LG Electronics, Inc., 186 Wn.2d 1, 9, 375 P.3d 636 (2016); State v. Ortega, 177 Wn.2d 116, 124, 297 P.3d 57 (2013). 8 State v. Rice, 174 Wn.2d 884, 901-02, 279 P.3d 849 (2012). 7 29 MOTION TO VACATE JUDGMENTS AND DISMISS MARIJUANA CHARGES - 6 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-7757 including difficulty in finding employment or getting into college or the military, 2 obtaining 3 student loans or government subsidized housing, qualifying for food stamps or other government assistance, being allowed entry into some foreign countries and 4 obtaining 5 child custody or adoption. Also, the public perception that the criminal justice 6 system is fair and responsive to changes in societal attitudes regarding what conduct is 7 sufficiently 8 enhanced 9 10 dangerous to warrant the condemnation of the criminal law would be by dismissing this charge. For these reasons, the City asks that the complaints be dismissed. 11 12 4. Additional legal concerns apply in cases involving noncitizens. 13 Following discussions with and based on representations made by DPD, and 14 because the City is already seeking to vacate these convictions and dismiss these 15 complaints, 16 17 the City stipulates that noncitizen defendants convicted of marijuana possession between 1996 and 2010 were not adequately advised of immigration 18 consequences 19 Sandoval, 20 as required by Padilla v. Kentucky, 559 U.S. 356 (20 10) and State v. 171 Wn.2d 163, 249 P.3d 1015 (2011). To reflect this stipulation, the City 21 respectfully requests that the Court include Proposed Finding of Fact No. 4 and Proposed 22 Conclusion 23 24 25 of Law No. 5 in the Proposed Order to reflect this stipulation. The City has included this language at the request of DPD, the Washington Defender Association (WDA), and several community organizations, who have 26 represented 27 to the City that this language is necessary for the vacations and dismissals 28 requested by this motion to be recognized by federal immigration authorities. The City MOTION TO VACATE JUDGMENTS AND DISMISS MARIJUANA CHARGES - 7 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206)684-7757 1 2 3 has a longstanding policy of treating citizens and noncitizens equally in its criminal justice system to the extent possible under the law and supports doing so in these cases if possible. The City understands that DPD will further address this issue in its response in 4 5 6 7 8 9 10 support of this motion and that WDA and several community organizations intend to file and amicus pleading further explaining the immigration issues. E. CONCLUSION Based on the forgoing argument, this court should vacate the judgment in these cases and dismiss the complaints. 11 12 Respectfully submitted this 7 7- day of April, 2018. 13 PETER S. HOLMES SEATTLE CITY ATTORNEY 14 15 16 Assistant City Attorney Criminal Division Chief WSBA #24019 17 18 19 20 21 22 23 24 25 26 27 28 29 MOTION TO VACATE JUDGMENTS AND DISMISS MARIJUANA CHARGES - S Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206)684-7757