Author: Default

[Caption omitted - this is Mark Clausen’s opening brief in Sohigian v. City of Oakland]

STATEMENT OF APPEALABILITY
	This appeal is authorized by Code of Civil Procedure section 904.1, subdivision (a)(1), as an appeal from a final judgment entered following an order sustaining respondents’ demurrer to the First Amended Complaint.

STATEMENT OF ISSUES
	The trial court erred in sustaining respondents’ demurrer.

STATEMENT OF THE CASE
	On September 18, 2002, appellant Aram Sohigian filed a taxpayer action pursuant to Code of Civil Procedure section 526a against respondents the City of Oakland (“the City”) and Oakland City Attorney John Russo (“the City Attorney”), challenging the constitutionality of Oakland Municipal Code (“OMC”) Chapter 9.56 (hereinafter “Chapter 9.56") – which is titled “Seizure and Forfeiture of Nuisance Vehicles” and is attached hereto as Appendix A. (CT 1-16.)  
	Under Chapter 9.56, vehicles used to solicit prostitutes or to purchase, or attempt to purchase, drugs of any kind and in any amount can be declared a nuisance, seized and subject to forfeiture, with the proceeds of forfeiture or monetary settlement in lieu of forfeiture distributed equally between the City Attorney’s office and the Oakland Police Department (“Oakland PD”).^1  

^1
	Chapter 9.56 is generally described in Horton v. City of  Oakland (2001) 82 Cal.App.4th 580, in which this court (First District, Division Three) rejected a preemption challenge to the ordinance, but did not reach any constitutional issues. (Id., pp. 584, 591.)

	On December 23, 2002, a First Amended Complaint was filed which, among other things, added plaintiffs and appellants Sam C. Horton and Carolyn Horton. (CT 1015-1045.)^2 

^2
	Appellant Sam C. Horton was the lead plaintiff in Horton, supra, 82 Cal.App.4th 580 and appellant Carolyn Horton is Sam’s adult daughter.

	On March 7, 2003, the City and City Attorney filed a joint demurrer to all causes of action contained in the First Amended Complaint. (CT 1053-1472.)
	On May 21, 2003, the court sustained the demurrer with limited leave to amend the causes of action challenging the constitutionality of Chapter 9.56 “as applied.” (CT 1477-1483.)  Appellants chose not to amend.
	On June 10, 2003, the court entered judgment in favor of the City and City Attorney as to all claims and causes of action. (CT 1484-1485.)  
	On June 19, 2003, appellants timely filed a Notice of Appeal. (CT 1486-1488.)

STATEMENT OF FACTS
	Appellants Aram Sohigian, Sam C. Horton and Carolyn Horton are taxpaying residents of the City who have standing to bring this action pursuant to Code of Civil Procedure section 526a.  Sam Horton and Carolyn Horton each own real property in the City and pay taxes thereon; Sohigian does not because he cannot afford to buy real property in the City. (CT 1015-1045; First Amended Complaint [“Comp.”], ¶¶ 4-9.)
	Commencing on or about 1998, the City has used paid employees to implement and enforce Chapter 9.56. (Comp., ¶¶ 12-23.)  Under the terms of Chapter 9.56, a vehicle is declared a “nuisance” and is subject to seizure and forfeiture to “abate the nuisance” when used to solicit an act of prostitution or to acquire or attempt to acquire narcotics of any kind and any amount. (OMC §9.56.010.) 
	Since the implementation of Chapter 9.56, vehicles have only been seized based on a non-judicial determination of probable cause made by the Oakland PD during undercover “sting” operations. (Comp., ¶¶ 25-27, 94-99; OMC §9.56.040(B).) During these “sting” operations, Oakland PD officers pose as drug dealers or prostitutes and  offer to sell extremely small quantities of facsimile marijuana or narcotics (such as oregano or baking powder) for prices generally ranging from $5.00 to $20.00; or, in “John” stings accept solicitations of any sexual act for prices generally ranging from $10.00 to $50.00. (Comp., ¶¶ 25-26, 94-98.) When an occupant of a vehicle allegedly agrees to pay for drugs or sexual favors, the vehicle is seized and the offender arrested.  In most cases, the offender is cited and released upon promise to appear and – without a vehicle – is forced to “beat feet”out of the area; thus giving rise to Chapter 9.56's nickname as Oakland’s “Beat Feet” ordinance. (Comp., ¶ 27-28, 104.) 
	The Oakland PD issues a receipt to the person in possession of the vehicle at the time of the seizure. (OMC §9.56.050.)  Thereafter, the Oakland PD and City Attorney are entrusted to provide notice of seizure and intent to forfeit to all interested parties by personal service or mail.  There are no time limits for ascertaining the identities and addresses of interested parties, but the Oakland PD is required to send notice “forthwith” once it determines a party has an interest in the vehicle. (OMC §9.56.070(C).)^3 

^3
	The notice of seizure and intent to forfeit advises, among other things, that potential claimants may contact the City Attorney on the second working day after the seizure to negotiate a monetary settlement in lieu of forfeiture.  Similar information is available on the official website of the City of Oakland and from other sources. (Comp., ¶¶ 32, 103, 114.)

	An interested party has 10 days after the receipt of notice to submit a claim opposing forfeiture. (OMC §§9.56.070(E) & 9.56.080(A).)  If no claim is timely filed, the City Attorney unilaterally orders forfeiture by default. (OMC §9.56.070(H).)  If a claim is timely filed, the City Attorney has 30 days to file a petition for forfeiture. (OMC §§9.56.070(A) and (I).)
	A hearing on the merits of a petition for forfeiture cannot be conducted until at least 30 days after a claim opposing forfeiture is filed (OMC §9.56.080(B)(1)), but nothing in Chapter 9.56 sets an outer-limit for a hearing – the process is entirely open-ended.  Lengthy delays arise because of the passage of time which occurs while parties are identified and served notice of seizure and intent to forfeit (OMC §9.56.070(C) & (D) [no time limits]), a claim opposing forfeiture is filed (OMC §9.56.070(E) and 9.56.080(A) [10 days from date of notice]), a petition for forfeiture is filed (OMC §9.56.070(A) and (I) [30 days from the filing of a claim opposing forfeiture]), the forfeiture petition is served (no time limits for service), an Answer filed (no time limits are specified, but presumably the 30 day period of Code of Civil Procedure section 412.20 applies), the matter becomes at-issue, is called for setting, and the case is set for hearing in the normal course. (See Oak. Sup. Ct. Local Rules 4.3-4.5.)  As a result, a hearing on the merits does occur for at least 6-12 months after seizure, sometimes longer. (Comp., ¶¶ 34-35, 106.)
	Chapter 9.56 provides no mechanism to obtain release of a vehicle pendente lite and the City Attorney takes the position that an opportunity for pendente lite release is not constitutionally required.  Accordingly, the City Attorney does not permit the release of a vehicle prior to a hearing on the merits, unless a monetary settlement is reached. (Comp., ¶¶ 36, 102-103.)
	Interested parties who contact the City Attorney regarding their seized vehicles are told that unless they agree to a monetary settlement their vehicle will not be released prior to a final determination on the merits.  Interested parties are thus aware that if they refuse to settle they will not have the use of their vehicle for at least the next 6 months, probably much longer.  There are no exceptions to this policy and the City Attorney has never released a vehicle pendente lite. (Comp., ¶¶ 37-38, 102-103, 106-108.)
	When a vehicle is forfeited or a monetary settlement reached, the proceeds are distributed pursuant to OMC section 9.56.090, as follows:
A.  To the bona fide or innocent purchaser, conditional sales vendor, [or] mortgage or lien holder of the property, if any, up to the amount of his or her interest in the property, when the court or the ... City Attorney declaring the forfeiture orders a distribution to that person.

B.  To the ... City Attorney, for all expenditures made or incurred by it in connection with the publication of notices set forth in Section 9.56.070, and the sale of the vehicle, including expenditures for any necessary repairs, storage, or transportation of any vehicle seized under this chapter.

C.  The remaining funds shall be distributed as follows:

1.  Fifty (50) percent to the local law enforcement entities that participated in the seizure distributed so as to reflect the proportionate contributions of each agency.

2.  Fifty (50) percent to the ... City Attorney.

D.  All funds distributed to the local law enforcement entities or ... City Attorney ... shall not supplant any funds that would ... [otherwise] ... be made available to ... [them].

	In all cases under Chapter 9.56, the City Attorney offers a monetary settlement in lieu of forfeiture, regardless of the culpability of the registered and legal owners of the vehicle.  The predominant factors in setting a settlement demand are the value of the vehicle and the affluence of the party seeking release, not the nature of the offense, history of the offender, or culpability of the party seeking release. (Comp., ¶¶ 33, 103, 112-114.) 
	Since its implementation, Chapter 9.56 has been repeatedly applied to a single act of soliciting prostitution, attempting to acquire narcotics, or acquiring a small amount of real or facsimile narcotics in situations where the forfeiture would be grossly disproportional to the culpability of the offender, the culpability (if any) of the registered or legal owner or other person seeking release of the vehicle, and the harm to society.  Vehicles are seized regardless of their value and in the majority of cases the legal or registered owner is not the offender, had no prior knowledge of the offender’s conduct and/or took all reasonable steps to prevent the conduct from occurring.  Vehicles valued at over $25,000.00 have been seized by the Oakland PD in this fashion, and the City Attorney has negotiated monetary settlements of approximately $10,000.00. (Comp., ¶¶ 94-96, 104, 107-110.)
	The City Attorney makes absolutely no effort to determine whether, in his opinion, forfeiture or the amount demanded as a monetary settlement are permissible under the state and federal excessive fines and due process clauses – such as where, for example, an “innocent owner” is involved.  Instead, the City Attorney takes the position that the constitutionality of actions taken under Chapter 9.56 is for the court to decide after a hearing on a merits.  The City Attorney knows, however, that a hearing will not occur until months after seizure, a claimant is not permitted to secure the release of a vehicle pendente lite, and the costs of securing counsel almost always exceed the value of the vehicle or the settlement demanded by the City Attorney; and thus, in almost every instance, a claimant will be forced by necessity to agree to a monetary settlement in lieu of forfeiture. (Comp., ¶¶ 39-42, 96-100, 106-110.)  
 	In non-default cases (see OMC §9.56.070(H)), the City Attorney reaches monetary settlements in lieu of forfeiture over 98% of the time!! (Comp., ¶¶ 50-53, 103, 117.)  The vast majority of monetary settlements are reached in the first 5 days after seizure. The City Attorney and Oakland PD equally divide the settlement proceeds, less minimal costs (OMC §9.56.090(B) and (C)), and the purportedly nuisance vehicle is released right back to the streets of Oakland. (Comp., ¶¶ 51, 103-104, 112.)
	Since the implementation of Chapter 9.56, over $500,000.00 has been divided between the City Attorney and Oakland PD.  The City Attorney and Oakland PD use forfeiture proceeds to pay for staff, equipment and other things which they would otherwise not be able to afford within budgetary constraints. (Comp., ¶¶ 86-87.) On numerous occasions, vehicles valued at more than $20,000.00 have been seized, for which the City Attorney and Oakland PD  stood (or stand) to gain $10,000.00 or more each pursuant to OMC section 9.56.090(C); and the City Attorney has negotiated monetary settlements of $5,000.00-$10,000 or more for which the City Attorney and Oakland PD each gained $2,500.00-$5,000.00 or more pursuant to OMC section 9.56.090(C) – which far exceeds their administrative costs of seizure and settlement. (Comp., ¶¶ 88-89.) 
	Based on these facts, the First Amended Complaint alleges twelve separate causes of action challenging the constitutionality of Chapter 9.56 on its face and as applied. (CT 1015-1045.)  Respondents demurred on the grounds that all claims are barred by the applicable statute of limitations, appellants lack taxpayer standing under Code of Civil Procedure section 526a , and no valid cause of action is stated.  (CT 1053-1472.) The trial court agreed with the last of these arguments and sustained the demurrer. (CT 1477-1483.)^4 

^4
	The outcome of the demurrer was partly foretold by the court’s prior denial of appellant Aram Sohigian’s motion for preliminary injunction. (CT 27-290, 349-1012 ; Dec. 4, 2002, RT 1-11.)

	On appeal, based solely on limited space and not the merits of their claims, appellants herein brief only the 1^st through 3^rd and 5^th through 7^th Causes of Action. 

ARGUMENT
I.
REVERSAL IS REQUIRED BECAUSE THE TRIAL COURT ERRED IN 
SUSTAINING THE DEMURRER TO THE FIRST AMENDED COMPLAINT

	In Horton v. City of  Oakland, supra, 82 Cal.App.4th 580, this court rejected a preemption challenge to Chapter 9.56, but did not reach any constitutional issues. (Id., pp. 584, 591.)  In so doing, the court put off for another day its consideration of the dire warnings of amicus curiae regarding the many constitutional defects inherent in the Oakland forfeiture ordinance and the danger that other cities would follow Oakland’s lead and adopt similar constitutionally defective ordinances.^5

^5
	See Amicus Brief of the California Attorneys for Criminal Justice and the Forfeiture Endangers American Rights Foundation [“F.E.A.R.”], supporting plaintiffs and appellants, Horton v. City of Oakland et al., First District Court of Appeal, Division 3, Case No. A085460. (See Appellants’ Request for Judicial Notice [“ARJN”], Request  # 1.)

	Unfortunately, the bleak constitutional picture painted by amicus curiae in Horton has proven to be an accurate portrait.  While this court made clear in Horton that it had not reached any constitutional issues, its holding has had the unintended affect of giving cities such as Sacramento, Los Angeles, Long Beach, Stockton, Lancaster and Richmond the political cover they needed to enact copy-cat ordinances, with other cities such as Fresno staged to do the same. (ARJN ## 2-12.) Local government officials anxious to look tough on crime deflect constitutional criticism by pointing to such things as a press release issued by the City Attorney announcing the City’s victory in Horton and stating that Chapter 9.56 was drafted “to ensure it would pass constitutional scrutiny” (ARJN # 4); and thereafter tell their fellow officials and voting constituents that Horton upholds the constitutionality of Chapter 9.56. (See ARJN ## 7 & 12.)^6

^6
	For example, in a July 2003 press release touting a proposed copy-cat forfeiture ordinance, Fresno City Councilman Henry T. Parea states that the constitutionality of Chapter 9.56 has been upheld by the State Supreme Court (ARJN # 12) – a patently false claim which likely stems from a misunderstanding of the legal affect of the Supreme Court’s denial of appellants’ Petition for Review in Horton, as well as the limited holding reached by this court in Horton. 

	Councilman Parea’s press release also mentions that the Stockton ordinance was upheld by the San Joaquin Superior Court against a constitutional challenge, but conveniently neglects to state that the decision is pending appeal in O’Connell v. City of Stockton, et al., Third District DCA No. C044400 – in which the same arguments urged here are raised. (ARJN # 2.)

	 In truth, the City and City Attorney have done everything possible to subject Chapter 9.56 to constitutional scrutiny and public and scholarly criticism, by very loosely patterning the ordinance after the state drug forfeiture statutes (Hlth. & Sfty. Code §§11469-11495), while removing all of the safeguards found in the state statutes – which are intended to bring state law into compliance with constitutional requirements so as "to ensure that peoples' property rights, and due process rights are protected." (Bill Analysis of A.B. 114, Assem. Comm. on Public Safety, April 20, 1993, p. 1.)^7 

^7
	The state scheme provides a host of protections not present in Chapter 9.56, such as limitations on the use of forfeiture proceeds, express admonishments against allowing forfeiture revenue to affect decision-making, and prohibitions on forfeitures which are grossly disproportional to the gravity of the underlying offense  (H&S §11469); mandated  criminal convictions as a pre-requisite to forfeiture in most instances (@ 11488.4, subd. (i); protection for innocent owners and exemptions for community property vehicles, common carriers and employers (@ 11469, subd. (j), 11470, subds. (e) and (g), 11488.5, subd. (e), 11488.6, 11490); pre-trial motions for return of property (@ 11488.4, subds.(g) and (h)); and pendente lite orders. (@ 11492, subd. (c).)  

	State law also allocates only 10% of forfeiture proceeds to prosecutors and 65% to police, with the remainder going to various state funds and programs (@ 11489, subd. (b)); requires publication of seizure and intent to forfeit as well as personal or mail service on all known interested parties (@11488.4, subds. (c)-(e)); and provides 30 days to file a claim opposing forfeiture. (@11488.5, subd. (a)(1).)  Whereas Chapter 9.56 splits forfeiture proceeds 50%-50% between police and prosecutor (OMC §9.56.090(C)), does not require notice by publication even where service in person and by mail is unsuccessful (OMC §9.56.070(C) & (D); Comp., ¶¶ 30-31, 122-125), and allows only 10 days to file a claim opposing forfeiture (OMC §9.56.080(A)) – an extraordinarily short period of time which the legislature saw fit to expand to 30 days after the court in Nasir v. Sacramento County Off. of the District Attorney (Nasir) (1992) 11 Cal.App.4th 976 called the 10 day period “extremely abbreviated” and suggested it may not meet constitutional requirements. (See also ARJN #1 [Amicus Brief of F.E.A.R. filed in Horton, discussing in greater detail the many differences between state law and Chapter 9.56].)  

	And even with these substantial differences, in Samples v. Lockyer, First District Court of Appeal, Div. 2, Case No. A102873, Sonoma County Superior Court Case No. 231307, the state scheme is being challenged on pecuniary interest/due process grounds similarly to those raised here.  (ARJN # 3.)

	In enacting Chapter 9.56, the City and City Attorney did not merely toe the edge of the constitutional abys, they dove headlong into it.  As a result, under Chapter 9.56 we see
seizures and threatened forfeitures which are clearly impermissible under the state and federal excessive fines clauses,  prosecuted under a scheme which purports to provide no protection to innocent owners and thus gives rise to “substantial constitutional concerns.” (Krimstock v. Kelly (2^nd Cir. 2002) 306 F.3d 40, 55-56 [“Krimstock”].) The City thereby casts a net so large that it catches a large percentage of vehicles whose seizure and threatened forfeiture offends the state and federal constitutions and basic notions of justice, impermissibly leaving the court to step inside to determine which seizures and forfeitures are permissible. (United States v. Reese (1875) 92 U.S. 214, 221 [ 23 L.Ed. 563, 565].) Chapter 9.56, however, effectively prevents judicial review by delaying a hearing on the merits for many months and failing to afford a prompt “probable cause” hearing in which the court has the opportunity to grant release pendente lite  (Cf. Krimstock, supra, 306 F.3d 40 [finding such a hearing is constitutionally required]); thereby allowing the pecuniarily interested City Attorney to leverage vehicle owners’ compelling need for their vehicles to force monetary settlements and thereby avoid judicial scrutiny –  just as occurred 225 years ago under the customs writs of assistance.^8  In this manner, the City Attorney lines the pockets of his office and the Oakland PD (OMC §9.56.090(B)-(D)), while putting purported “nuisance” vehicles right back on the streets of Oakland over 98% of the time !!

^8
	Monetary incentives promoting police lawlessness and selective enforcement, in the form of the customs writs of assistance, were among the key grievances that triggered the American Revolution. (Blumenson and Nilsen, Policing for Profit: The Drug War's Hidden Economic Agenda (1998) 65 U. Chi. L. Rev. 35, 75-77  [“Policing for Profit”].) Writs of assistance authorized customs officers to seize suspected contraband and to retain a share of the proceeds for themselves and their informants. (Ibid.) “If the property was used in commerce, then each day spent fighting to establish a claim was another day's business lost. Consequently in colonial admiralty court, officials and property owners struck deals that placed the owner in the peculiar position of paying the state for the return of property.” (Id., p. 77, fn. 149.)  From the viewpoint of the Crown, this incentive helped to ensure that goods landing in American ports were taxed or, if prohibited, confiscated.  But for the colonists, it was an outrage that brought with it corrupt officials, lawless seizures, selective enforcement, and fabricated evidence which led to fortunes being put into private pockets. From these complaints "the child Independence was born." (Policing for Profit, supra, 65 U. Chi. L. Rev. 35, 76.)

	Policing for Profit has been cited in: Buritica v. United States (N.D. CA 1998) 8 F. Supp. 2d 1188, 1193-1195; United States v. Siriprechapong (N.D. CA 1998) 181 F.R.D. 416, 419; United States v. One 1997 E35 Ford Van (N.D. Ill., E. Div. 1999) 50 F. Supp. 2d 789, 796; United States v. One Lot of United States Currency Totaling $14,665 (Dist. of Mass. 1998) 33 F. Supp. 2d 47, 60; and State v. Nunez (N.M. Supreme Ct. 1999) 129 N.M. 63, 69 [2 P.3d 264].  In 2001, the authors followed up with an update on the status of forfeiture law and the constitutional issues associated therewith. (Blumenson & Nilsen, The Next Stage of Forfeiture Reform, 14 Federal Sentencing Reporter No. 2, p. 76 (Sept./Oct. 2001).)

	While the City obviously intended Chapter 9.56 to be a powerful weapon in the war on drugs and prostitution, any resulting reduction in drug and prostitution-related crime is a Pyrrhic victory for the City and the citizenry at large, because the City’s use of that weapon has left the state and federal constitutions and the public trust a casualty. (See United States v. Lasanta (2d Cir. 1992) 978 F.2d 1300, 1305.)
A. 	The First and Fifth Causes of Action state valid claims for relief because – on its face and as applied – OMC section 9.56.090 violates state and federal due process by vesting the Oakland PD and City Attorney with a substantial pecuniary interest in forfeiture proceedings.	
	
	In Young v. U.S. ex rel. Vuitton et Fils S. A. (1987) 481 U.S. 787  [95 L. Ed. 2d 740, 107 S. Ct. 2124] [“Young”], the High Court held that counsel for a party that is the beneficiary of a court order may not serve as the prosecutor of criminal contempt charges for alleged violations of that order because he acts under an insurmountable conflict of interest when pursuing the criminal prosecution. (Id. at 802-814.)  The court explained: "The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice,  not merely to convict. [¶ ...] As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer." (Id., at p. 803, internal citations omitted.) Because of their unique responsibilities, prosecutors are forbidden from holding any interest in the outcome of a prosecution. An attorney representing a party in a civil action who stands to benefit from a criminal contempt prosecution cannot act impartially, because the interests of his civil client may well be adverse to his prosecutorial duties. (Id., at pp. 803-805.)
The Government's interest is in dispassionate assessment of the propriety of criminal charges for ... [contempt].  The private party's interest is in obtaining the benefits of the court's order.  While these concerns sometimes may be congruent, sometimes they may not.  A prosecutor may be tempted to bring a tenuously supported prosecution if such a course promises financial or legal rewards for the private client.  Conversely, a prosecutor may be tempted to abandon a meritorious prosecution if a settlement providing benefits to the private client is conditioned on a recommendation against criminal charges.” (Id., at p. 805; and see id., at p. 806 [discussing these temptation as applied to the facts of the case].)

	“A prosecutor occupies a unique role in our criminal justice system and it is essential that he carry out his duties fairly and impartially.  Where a ... prosecutor ...  also represents an interested party, the possibility that his prosecutorial judgment will be compromised is significant.” (Id. at p. 826 (Powell, J., with whom Rehnquist, C.J., and O'Connor, J., joined, conc. in part, diss. in part).)  An interested prosecutor “undermines confidence in the integrity of the criminal proceeding” (id., at p. 810), “creates an appearance of impropriety that diminishes faith in the fairness of the criminal justice system in general” (id., at p. 811), and “calls into question, and therefore requires scrutiny of, the conduct of an entire prosecution, rather than simply a discrete prosecutorial decision.” (Id., at p. 812.)  The court and the public “cannot have confidence in a proceeding in which [an interested prosecutor] plays the critical role of preparing and presenting the case for the defendant's guilt.” (Id., at p. 811) “Justice must satisfy the appearance of justice,”  and a prosecutor with conflicting loyalties “presents the appearance of precisely the opposite.” (Id. at pp. 811-812.) 
	Although Young “strongly condemned interested counsel serving as ... prosecutors, the Court avoided the necessity of reaching the constitutional issue since it relied upon its inherent supervisory authority in condemning the practice. (Young, 481 U.S. at 809.) Obviously, this does not preclude and probably only foreshadows a constitutional bar with respect to the use of interested ... prosecutors. (Citation.) ... [¶] Numerous cases have either found express due process violations or due process implications relating to the participation of an interested prosecutor. (Citations.) We have no hesitation in concluding that the participation [of] ... prosecutors who represent the victim in a civil matter arising from the same incident giving rise to the criminal prosecution is a violation of the defendant's rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution as well as ... Article I, [§] 8 of the Tennessee Constitution. (State v. Eldridge (Tn. Ct. App. 1997) 951 S.W.2d 775, 782; and see Young, supra, 481 U.S. at pp. 814-815 (Blackmun, J., conc. [interested prosecutor violates due process]; see also maj. opn. at 481 U.S. p. 808, fn. 19, citing Brotherhood of Locomotive Firemen & Enginemen v. United States (5^th Cir. 1969) 411 F.2d 312, 319 [interested prosecutor violates due process].) 
	In Ganger v. Peyton (4th Cir. 1967) 379 F.2d 709, the court relied on due process to invalidate an assault conviction where the state prosecuting attorney represented the alleged victim, Ganger's wife, in the prosecution of a divorce action which was pending at the time of the criminal trial and was based upon the same alleged assault. (Id., at p. 711.)  The court reasoned:
The prosecuting attorney is an officer of the court, holding a quasi judicial position.  His primary responsibility is essentially judicial – the prosecution of the guilty and the protection of the innocent; his office is vested with a vast quantum of discretion which is necessary for the vindication of the public interest. (Id. at p. 714, internal citations omitted.)

[The] conflict of interest clearly denied Ganger the possibility of fair minded exercise of the prosecutor's discretion.  Not every criminal case goes to trial. Prosecuting attorneys frequently decline to charge, or nol pros, criminal cases –  especially ones arising out of domestic relations.  Aside from the possibility of a favorable charge decision, including nol pros, there is always the prospect of plea bargaining. 

  	Because of the prosecuting attorney's own self-interest in the civil litigation  (including the possibility that the size of his fee would be determined by what could be exacted from defendant), he was not in a position to exercise fair-minded judgment with respect to (1) whether to decline to prosecute, (2) whether to reduce the charge to a lesser degree of assault, or (3) whether to recommend a suspended sentence or other clemency. (Id., at pp. 712-713, internal footnotes omitted.)^9 

^9
	Similar conclusions have been reached in: Commonwealth v. Tabor (Mass. Supreme Ct. 1978) 384 N.E.2d 190 [376 Mass. 811, 819-820]; Sinclair v. State (1976) 278 Md. 243, 255, fn.8 [363 A.2d 468]; Commonwealth v. Eskridge (1992) 529 Pa. 387, 392 [604 A.2d 700]; Cantrell v. Commonwealth (1985) 229 Va. 387, 394 [329 S.E.2d 22]; State v. Detroit Motors (L. Div. 1960) 163 A. 2d 227 [62 N.J. Super. 386]; State v. Tate (La. Supreme Ct. 1936) 171 So. 108 [185 La. 1006];  In re Ridgely (Del. Supreme Ct. 1954) 106 A. 2d 527, 530-31 [48 Del. 464]; In re Davidson (5th Cir. 1990) 908 F.2d 1249, 1251; People v. Zimmer (1980) 414 N.E.2d 705, 708-709 [51 N.Y.2d 390, 393-394] [“Zimmer”]; and Callahan v. Jones (Wash. Supreme Ct. 1939) 93 P.2d 326 [200 Wash. 241].

	More recently, in Dick v. Scroggy (6^th Cir. 1989) 882 F.2d 192 the majority said:  “regardless of [a] defendant's culpability, it is unseemly, to say the least, for [prosecutorial] discretion to be exercised by a prosecutor who is not reasonably disinterested. (Id., 882 F.2d at p. 195 [fn. omitted].) Concurring in the decision, Judge Celebrezee added:
[An interested prosecutor] ... is not merely “unseemly” as the majority understates, it is an unforgivable abuse of the public trust in which the public's overriding interest in the fair operation of its criminal justice system, an interest prosecutors are sworn to uphold, may be sacrificed in favor of the financial interest of a cynical prosecutor. ... [¶¶] A criminal justice system that operated under such pretense would engender justifiable public outrage, and would bring our already maligned legal profession into further disrepute. (Id. at pp. 198, internal citations omitted.)

	“The truth pronounced by Justinian more than a thousand years ago that, ‘Impartiality is the  life of justice,' is just as valid today as it was then. Impartiality finds no room for bias or prejudice.  It countenances no unfairness and upholds no miscarriage of justice.  Bias and prejudice can deflect the course of justice and affect the measure of its judgments.” (United States v. Brown (5^th Cir. 1976) 539 F.2d 467, 469.) Of all the circumstances that can affect impartiality and give rise to a disabling bias, “pecuniary interest has long received the most unequivocal condemnation and the least forgiving scrutiny.” (Haas v. County of San Bernardino (2002) 27 Cal. 4th 1017, 1025 [“Hass”].)  Congress deems it so important that those representing the public interest should be financially disinterested in the decisions they make that it has made it a crime punishable by up to five years in prison for a public employee – including a prosecutor – to participate in a "judicial or other proceeding" in which the employee or a closely related person or entity has a financial interest. (18 U.S.C. 208, subd. (a).)  This is in keeping with the biblical teaching that "the love of money is a root of all kinds of evil." (1 Timothy 6:10.)
	Over 135 years ago, in implicit recognition of the duty of prosecutorial financial impartiality, the court in Price v. Caperton (Ky. App. 1864) 62 Ky. 207, 208, observed that "a contingent fee dependent on conviction ought never to be permitted.” Over 80 years ago, the Supreme Court of New Mexico in Baca v. Padilla (N.M. Supreme Ct. 1920) 190 P. 730 [26 N.M. 223] applied this sound principle to invalidate a contract by which the prosecutor would be paid a “reasonable fee” if the parties he was to prosecute were acquitted, but  if convicted he would receive a "big fee."  The court reasoned: “[W]e have injected into the prosecution of a criminal case a prosecutor whose personal interests would be subserved best by securing the conviction of the defendant, and this regardless of the question as to whether or not the defendant were guilty or innocent; that is to say, the size of his fee, or possibly whether he receive any fee at all, would be dependent upon the conviction of the defendant, however innocent he might be.  This is contrary to the policy of our law.  The state provides a prosecuting attorney, pays him a salary, and no part of his compensation is dependent upon the conviction or acquittal of those charged with infractions of the state law.  He is supposed to be a disinterested person, interested only in seeing that justice is administered and the guilty persons punished.  To permit and sanction the appearance on behalf of the state of a private prosecutor, vitally interested personally in securing the conviction of the accused, not for the purpose of upholding the laws of the state, but in order that the private purse of the prosecutor may be fattened, is abhorrent to the sense of justice and would not, we believe, be tolerated by any court.” (Id., 190 P. at pp. 731-732.)
	Nearly 20 years ago, in People ex rel. Clancy v. Superior Court (1985) 39 Cal. 3d 740 [“Clancy”], the California Supreme Court followed this reasoning and extended the prosecutorial duty of financial impartiality to civil nuisance abatement actions such as those at-issue here.  There, the city hired an attorney to prosecute a nuisance abatement action pursuant to a contingency fee contract by which he was to be paid $60.00 per hour for every successful suit, but only $30.00 per hour in cases where the city did not prevail. (39 Cal.3d at p. 745.)  The Supreme Court recognized that “Clancy has an interest in the result of the case: his hourly rate will double if the City is successful in the litigation.  Obviously this arrangement gives him an interest extraneous to his official function in the actions he prosecutes on behalf of the City.” (Id. at pp. 747-748.)  “It is clear that [case-by-case] fee systems of remuneration for prosecuting attorneys raise serious ethical and perhaps constitutional problems, are totally unacceptable under modern conditions, and should be abolished promptly.” (Clancy, supra, 39 Cal.3d at p. 748, internal citations omitted.)  Nuisance abatement actions, like criminal prosecutions, are “a class of civil actions that demands the representative of the government to be absolutely neutral. ” (Id. at p. 748; and see id. at p. 750.) “Any financial arrangement that would tempt the government attorney to tip the scale cannot be tolerated.” (Id. at p. 749.) 
	Twenty-two years ago, in People v. Barboza (1981) 29 Cal. 3d 375, and more recently in People v. Eubanks (1996) 14 Cal. 4th 580, the California Supreme Court made clear that the duty of financial impartiality extends beyond “personal” financial interests to the “institutional” interests of the prosecutor and police. 
	In Barboza, the Public Defender's office was paid a set sum per month and $15,000 was deposited in a reserve account which was required to be maintained at all times to pay “conflicts” counsel when the public defender was disqualified because of a conflict of interest.  The amount of any deficiency in the reserve account was subtracted from the monthly payment due the Public Defender’s office and deposited in the account.  At the end of each fiscal year, any unexpended balance in the reserve account was paid to the Public Defender’s office, and conversely, the Public Defender’s office was liable for any deficiency in the account. (29 Cal.3d at pp. 378-379.)  
	Pursuant to the contract, the fewer “conflicts” attorneys that were engaged, the  more money was available for the operation of the public defender's office.  “The direct consequence of this arrangement was a financial disincentive for the public defender either to investigate or declare the existence of actual or potential conflicts of interest requiring the employment of [conflict] counsel.” (Id., at p. 379.)  The public defender’s office was confronted with competing considerations: discovery of any conflicts versus protection of the office’s financial self-interest. (Ibid.)  “No matter how well-intentioned the public defender might be, the contract places him in a situation with grave consequences and implications for  the administration of justice.  Not only is there an ‘appearance of impropriety,’ there is also a real and insoluble tension, created by the contract, between the defender's conflicting interests.” (Id. at p. 380.)
	The Supreme Court expanded on this reasoning in Eubanks, supra, 14 Cal.4th 580, where  a corporation alleged to be the victim of trade secrets theft (“Borland”), contributed around $13,000 to the budget of the district attorney’s office to cover the cost of the district attorney's investigation of the alleged theft. (Id., at pp. 584-588.)  After reciting the prosecutor’s duty of impartiality (id., at pp. 588-594), the Supreme Court concluded the contribution created an impermissible financial conflict of interest which required disqualification of the district attorney’s office.  (Id., at pp. 594-600; see also id., pp. 600-604 (Geroge, C.J., joined by Mosk, J., conc.).) 
	As particularly applicable here, “the Attorney General argue[d] at length that financial contributions to the district attorney's office should not, as a matter of law, be considered as creating a conflicting interest for purposes of disqualification, because any interest of the district attorney in such contributions would be an institutional, rather than personal, interest ... [which] ‘did not benefit any official's personal pocketbook’ ....” (14 Cal.4th at p. 595.)  The Court rejected the argument:
The Attorney General fails to persuade us any legal principle restricts the concept of a conflicting interest to a district attorney's personal financial or emotional stake in the prosecution. ... No reason is apparent why a public prosecutor's impartiality could not be impaired by institutional interests, as by personal ones. We have recognized the existence of such an impermissible conflict in a scheme that made the official budget of a public defender dependent on litigation decisions that also affected the interests of the defender's clients (People v. Barboza (1981) 29 Cal. 3d 375, 380); in some circumstances, the same might be true of prosecutors. For example, a scheme that provides monetary rewards to a prosecutorial office might carry the potential impermissibly to skew a prosecutor's exercise of the charging and plea bargaining functions. (Cf. Marshall v. Jerrico, Inc. (1980) 446 U.S. 238, 250 [64 L. Ed. 2d 182, 193, 100 S. Ct. 1610] [return of penalties to prosecuting office held permissible, where budgeting system guarantees there is no "realistic possibility"  the prosecuting officer will be influenced by "the prospect of institutional gain"].) (Eubanks, supra, 14 Cal.4th at pp. 595-596, bold added.)^10  

^10
	Although Eubanks concerns the disqualification of the district attorney in a criminal proceeding pursuant to the recusal provisions of Penal Code section 1424, the standard articulated in Eubanks mirrors that required by due process (Eubanks, supra, 14 Cal.4th at p. 596 and fn. 8;  Hambarian v. Superior Court (2002) 27 Cal.4th 826, 833, fn. 4; People v. Snow (2003) 30 Cal. 4th 43, 86, fn. 12); and that standard applies equally to nuisance abatement actions.(Clancy, supra, 39 Cal. 3d 740, 745-749; People v. Parmar (2001) 86 Cal.App.4th 781, 788-803.)

	The court went on to emphasize that “a prosecutor may have a conflict if institutional  arrangements link the prosecutor too closely to [another] party ... who in turn has a personal interest in the defendant's prosecution and conviction.  The tie that binds the prosecutor to an interested [party] may be compelling though it derives from the prosecutor's institutional objectives or obligations.” (Id., at p. 596)  “A public prosecutor must not be in a position of ‘attempting at once to serve two masters,’ the People at large and [another] person or entity with its own particular interests in the prosecution.” (Ibid, quoting Ganger v. Peyton, supra, 379 F.2d 709, 714; see also Zimmer, supra, 51 N.Y.2d 390, 393-94.)^11   

^11
	For this reason, to determine whether the financial incentives of Chapter 9.56 violate due process, the court not only looks to the institutional interest of the City Attorney himself, but also to the institutional interests of the Oakland PD with whom the City Attorney must interact and on whom he must rely in order to effectively prosecute forfeiture actions. (Parmar, supra, 86 Cal.App.4th at pp. 795-797; Eubanks, supra, 14 Cal.4th at pp.590, 596; and id. at pp. 601-603 (George, C.J., joined by Mosk, J., conc. ); Hambarian, supra, 27 Cal.4th 826, 837-838; and see id., at pp.  849-852 (Moreno, J., diss.).)

	The reasoning of Eubanks follows directly from the due process standard applicable to adjudicators, who can be disqualified based on their “institutional” financial interests as well as their personal interests.  (See, e.g., Ward v. Village of Monroeville (1972) 409 U.S. 57 [34 L. Ed. 2d 267, 93 S. Ct. 80] [“Ward”]; United Church of the Medical Center v. Medical Center Commission (7^th Cir. 1982) 689 F.2d 693, 699-701; Salcido v. Woodbury County (N.D. Iowa 2000) 119 F. Supp. 2d 900, 928; Meyer v. Niles Township (N.D. Ill. 1979) 477 F. Supp. 357, 362; Augustus v. Roemer (1991 E.D. LA) 771 F. Supp. 1458, 1472-1473;  State v. Chinn (W.Va. 1961) 146 W. Va. 610, 121 S.E.2d 610; In re Matter of Ross (Nev. 1983) 99 Nev. 1 [656 P.2d 832].)  The prevailing rule in such cases is any financial arrangement, whether personal or institutional, that “would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process  of law." (Tumey v. Ohio (1927) 273 U.S. 510, 532  [71 L. Ed. 749, 47 S. Ct. 437] [“Tumey”]; and see, generally, Haas, supra, 27 Cal. 4th 1017, 1024-1031.) 
	Respondent points to Marshall v. Jerrico, Inc. (1980) 446 U.S. 238  [64 L. Ed. 2d 182, 100 S. Ct. 1610] [“Jerrico”], and contends the standard of Tumey and Ward does not apply here because deputy City attorneys are not judges and perform “no judicial or quasi-judicial functions”^12; and under Chapter 9.56 it is the judge, not the City Attorney, who remains the ultimate arbiter of the nuisance abatement action. (Jerrico, supra, 446 U.S. at p. 247.)  But in nuisance abatement actions, the California Supreme Court has applied a standard virtually identical to that announced in Tumey and Ward, holding that “[a]ny financial arrangement that would tempt the government attorney to tip the scale [of justice] cannot be tolerated” (Clancy, supra, 39 Cal.3d at p. 749); and has cited Ward and Tumey as examples of situations in nuisance abatement actions where prosecutors “can be disqualified for having an interest in the case extraneous to their official function.” (Id. at p. 39 Cal.3d at p. 747.)

^12
	The standard announced in Tumey and Ward applies to “any officer, judicial or quasi-judicial.” (Tumey, supra, 273 U.S. 510, 524 [bold added].)

	Moreover, although Jerrico states that prosecutors exercise no judicial or quasi judicial functions (446 U.S. at p. 247), the California Supreme Court in  Eubanks, supra, 14 Cal.4th at p. 596, cited with approval Ganger v. Peyton, supra, 379 F. 2d 709, in which the court said: “the prosecuting attorney is an officer of the court, holding a quasi judicial position.  His primary responsibility is essentially judicial – the prosecution of the guilty and the protection of the innocent.” (379 F. 2d 709, 714 [bold added].)^13  Our state Supreme Court has also expressly held that “prosecutors and other law enforcement officers” have  “quasi-judicial responsibility” for the “institution and prosecution” of actions. (Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 722.)  And in spite of its comment to the contrary in Jerrico, the United States Supreme Court has itself recognized that prosecutors perform “quasi-judicial” functions. (See, e.g., Spiegel v. Rabinovitz (7th Cir. 1997)121 F.3d 251, 256-257, discussing Imbler v. Pachtman (1976) 424 U.S. 409 [47 L. Ed. 2d 128, 96 S. Ct. 984].)

^13
	This in keeping with the California Supreme Court’s recognition that a prosecutor in a nuisance abatement action is “in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.” (Clancy, supra, 39 Cal. 3d 740, 746, internal citations omitted.)

	Further, in supporting its analysis in Jerrico, the United States Supreme Court said: 
Prosecutors need not be entirely "neutral and detached," cf. Ward v. Village of Monroeville, 409 U.S., at 62. In an adversary system, they are necessarily permitted to be zealous in their enforcement of the law. (Jerrico, 446 U.S. at p. 247.)

	But our state Supreme Court has rejected the suggestion that this rationale allows for financially interested prosecutors: “While ... [prosecutors do] have a duty of zealous advocacy, ‘both the accused and the public have a legitimate expectation that his zeal . . . will be born of objective and impartial consideration of each individual case.’” (Eubanks, supra, 14 Cal.4th at p. 590, quoting People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 267.)  That expectation is not met when the prosecutor has a direct financial interest in the outcome of the proceedings. (Eubanks, supra, 14 Cal.4th at p. 595-596; Clancy, supra, 39 Cal. 3d 740, 745-749; and see Barboza, supra, 29 Cal. 3d 375, 380-381 [distinguishing Jerrico].)^14 

^14
	This is not inconsistent with the United States Supreme Court’s conclusion that the government “may, and often ought to, stimulate prosecutions for crime by offering to those who shall initiate and carry on such prosecutions rewards for thus acting in the interest of the State and the people” (Jerrico, supra, 446 U.S. at pp. 248-249, quoting Tumey, supra, 273 U.S. at p. 535), because the interest of the State and the People is not in securing a forfeiture judgment or monetary settlement, but obtaining a just result. (Eubanks, supra, 14 Cal.4th at pp. 589-590, Clancy, supra, 39 Cal. 3d 740, 745-750; Young, supra, 481 U.S. 787, 803-807, 814.) Where, as here, financial rewards are offered only when a forfeiture judgement or monetary settlement is obtained, the rewards are incongruous with the interests of the State and the citizenry because they encourage unjust results.

	Additionally, Jerrico’s conclusion that the standard of Ward and Tumey does not apply because the judge, not the prosecutor, remains the ultimate arbiter of the action (Jerrico, supra, 446 U.S. at p. 247), is irreconcilable with its subsequent recognition in Young
that the presence of a neutral judge does not cure the participation of an interested prosecutor because of the myriad of discretionary prosecutorial decisions which occur outside the purview of the court (Young, supra, 481 U.S. at pp. 807- 813; see also Ganger v. Peyton, supra, 379 F. 2d 709, 711-714)^15, and the fact that “[e]ven if a defendant is ultimately acquitted, forced immersion in criminal investigation and adjudication is a wrenching disruption of everyday life.”  (Young, supra, 481 U.S. at p. 814.)^16  “For this reason, we must have assurance that ... [prosecutors] will be guided solely by their sense of public responsibility for the attainment of justice.” (Ibid.)

^15
	Case law is replete with examples of the prosecutor’s broad discretionary functions and decision-making powers. (See, e.g., Eubanks, supra, 14 Cal.4th at p. 589; People v. Parmar, supra, 86 Cal.App.4th 781, 803-804; Clancy, supra, 39 Cal. 3d 740, 745-749; Young, supra, 481 U.S. at pp. 805-814; Zimmer, supra, 414 N.E.2d 705, 708-709; Ganger v.Peyton, supra, 379 F.2d at p. 712, fn. 4; Dick v. Scroggy, supra, 882 F.2d 192, 195; Nasir,  supra, 11 Cal. App. 4th 976, 989-990.)

^16
	A conclusion which directly follows from the United State Supreme Court’s recognition in Jerrico that the decision to enforce or not to enforce “may itself result in significant burdens on a defendant or a statutory beneficiary, even if he is ultimately vindicated in an adjudication.” (Jerrico, supra, 446 U.S. at p. 249.)

	Similarly, our state Supreme Court has held that the prospect of dismissal or acquittal by a neutral judge or jury does not cure the defect inherent when a prosecutor has a financial interest, because the damage to the defendant arises from having to face an improper prosecution in the first place. (Eubanks, supra, 14 Cal.4th at pp. 589, 593-594; Hambarian, supra, 27 Cal.4th 826, 848-849 (Moreno, J., diss.).) This conclusion is particularly appropriate here, because by the time a forfeiture case reaches a neutral judge who can assess the financial interests of the City Attorney and Oakland PD (see Hambarian, supra, 27 Cal.4th 826, 840), the claimant has already been deprived of the use of his vehicle for many, many months  (Comp., ¶¶ 34-35, 106) – and this “erroneous deprivation” cannot be recompensed by the claimant's prevailing in the proceedings. (Krimstock, supra, 306 F.3d at pp. 63-64.)
	Moreover, because the vast majority of forfeiture cases under Chapter 9.56 are resolved by monetary settlements (Comp., ¶¶ 50-55, 103), it is equally as important, if not more so, to have a financially disinterested City Attorney and Oakland PD as a financially disinterested judge. (Policing for Profit, supra, 65 U. Chi. L. Rev. 35, 62 [“in a system where few cases ever go to trial,” in most cases “the integrity of the system depends primarily on the fairness of the law enforcement branch.”]; Ganger v.Peyton, supra, 379 F.2d at p. 712, fn. 4 [“more people are cleared and released by the police themselves than by the entire legal process of arraignment, preliminary hearing, indictment by the grand jury, and trial”]; and see ARJN ## 13-17.)^17 

^17
	Thus, to the extent the court believes Jerrico’s reasoning survives Young and controls the legal analysis under the federal due process clause, it should conclude that reasoning does not survive under the independent scrutiny of the state constitution. (See, e.g., People v. Brisendine (1975) 13 Cal. 3d 528, 548-550.) And in any event, as explained later herein, Jerrico is distinguishable from this case.

	Although Jerrico rejected the application of the strict standard set forth in Tumey and Ward, the United States Supreme Court emphasized that civil prosecutors are still bound by due process limitations on financial conflicts of interests:
“We do not suggest ... that the Due Process Clause imposes no limits on the partisanship of administrative prosecutors. ... A scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision and in some contexts raise serious constitutional questions.” (446 U.S. at p. 250 [internal citations and footnotes omitted, bold and underlining added].)

	In Young, the High Court cited the above-quoted bold passage as being consistent with the trend to prohibit interested prosecutors from prosecuting criminal actions (Young, supra, 481 U.S. at p. 808) and explained that although the federal standard for finding a conflict of interest may differ slightly with respect to judges and prosecutors, “this difference in treatment is relevant to whether a conflict is found, ... not to its gravity once identified.” (Id. at pp. 810-811.) Once a court concludes a prosecutor is “subject to influences that undermine confidence that a prosecution can be conducted in disinterested fashion,” the court “cannot have confidence in a proceeding in which [the prosecutor] plays the critical role of preparing and presenting the case for the defendant’s guilt.” (Ibid.) 
	Here, the court cannot have confidence in forfeiture proceedings under Chapter 9.56 because OMC section 9.56.090 affords the City Attorney and Oakland PD a “substantial pecuniary interest” in nuisance abatement/forfeiture proceedings. (See United States v. James Daniel Good Real Property (1993) 510 U.S. 43, 55-56 [126 L. Ed. 2d 490, 114 S. Ct. 492] [“Good Real Property”].) This is an “unseemly” arrangement (Civil In Rem Forfeiture and Double Jeopardy (1986) 82 Iowa L. Rev. 183, 220), and “‘built-in’ conflict of interest” (United States v. That Certain Real Property Located at 632-636 Ninth Avenue, Calera, Alabama (N.D. Ala. 1992) 798 F.Supp.1540, 1551) which is “corruptive” and “creates incentives that evidently require a more-than-human judgment and restraint” (United States v. Funds Held ex rel. Wetterer (2^nd Cir. 2000) 210 F.3d 96, 110), because it places the City Attorney and Oakland PD in a position where the “smell of money” has the potential to skew their discretionary decisions (see United States Currency in the Amount of $150,660.00 (8th Cir., 1992) 980 F.2d 1200, 1208 (Bright, J., diss.)) by tempting them to improperly use forfeiture to generate revenue for their agencies. (Funds Held ex rel. Wetterer, supra,  210 F.3d 96, 110; United States v. $191,910.00 in United States Currency (9^th Cir. 1994) 16 F.3d 1051, 1068-1069 and fns. 36 & 37; Policing for Profit, supra, 65 U. Chi. L. Rev. 35.)  This provides “strong incentives” for “even the most honest” law enforcement agents and deputy City attorneys to “pursue forfeitures for improper purposes” and “encourag[es] seizures [and prosecutions] in marginal cases” to force settlements – and “one can only imagine what kind of encouragement this gives dishonest agents.”(Civil In Rem Forfeiture and Double Jeopardy, supra, 82 Iowa L. Rev. 183, 220.)^18

^18  
	The City can imagine what dishonest agents might do, because it experienced first hand the financially motivated police corruption described in United States v. Reese (9^th Cir. 1993) 2 F.3d 870, 874-880, and more recently in the locally infamous “Riders” scandal in which “rogue police officers ... beat suspects and placed drugs on innocent people” and the Oakland PD “either encouraged or ignored the abuse” (ARJN # 17), resulting in criminal charges against the officers and a $10.9 million settlement of the class action civil case by the victims of the police misconduct – the largest civil settlement ever paid by the City. (ARJN #13-17; CT 32-41 [Exhibit A to Clausen Decl. – Oakland Tribune article re: Riders criminal trial].)  

	Speaking on behalf of the City and Oakland PD, the City Attorney claims: “We acknowledged freely our faults, and we’ve worked arm in arm toward fixing the problem rather than hiding from or denying the problem.” (ARNJ #17.)  But the financial incentives of Chapter 9.56 suggest the City and Oakland PD have learned little and fixed less.

	Under OMC section 9.56.090, forfeiture revenue flows to the City Attorney’s office and Stockton PD in much the same way revenue flowed to the mayor/judge in Ward, supra, 409 U.S. 57.  This creates an incentive for the City Attorney and Oakland PD “to overzealously and, perhaps, unconstitutionally apply local seizure laws.” (The Plight of the Minority Motorist (1994) 39 N.Y.L. Sch. L. Rev. 49, 52-54, 64; Michele M. Jochner, Illinois Bar Journal (1999) 87 Ill. B.J. 78, 79; and see ARJN ## 13-17.) 
   	The most intuitively obvious problem presented by the forfeiture and equitable sharing laws is the conflict of interest created when law enforcement [and prosecutorial] agencies are authorized to keep the [profits from the] assets they seize. It takes no special sophistication to recognize that this incentive constitutes a compelling invitation to police departments [and prosecuting agencies] to stray from legitimate law enforcement goals in order to maximize funding for their operations. (Policing for Profit, supra, 65 U. Chi. L. Rev. 35, 65; and id. at p. 83.)

[A] conflict[ ] of interest and [other] policy problems ... arise when law enforcement and prosecutorial agencies reap [a] financial bounty from the forfeiture decisions they make. Decisions regarding whose property to seize, and how to deal with citizens whose property has been seized is too often dictated by the profit the agencies stand to realize from the seizures. (Civil Asset Forfeiture Reform Act, Hearings on HR 1916 before the House Committee on the Judiciary, 104th Cong, 2d Sess 310 (July 22, 1996) [prepared statement the National Association of Criminal Defense Lawyers Asset Forfeiture Abuse Task Force].)
Financial gain is the obvious motive for many crimes. Ironically, this motive also explains the problematic behavior of law enforcement agencies involved in civil asset forfeiture. ... Giving law enforcement agencies a portion of the assets that they seize ... leads to questionable practices and overzealous pursuit of forfeitures, to the detriment of the public. (Chi, Follow the Money: Getting to the Root of the Problem with Civil Asset Forfeiture in California (2002) 90 Calif. L. Rev. 1635, 1646; and see id., at p. 1664.)

[T]he ease and profitability of forfeiture have refocused law enforcement away from apprehension and investigation of criminals to grabbing property. [¶¶ ...] Police actively have set out to create criminal opportunities in order to forfeit property, and they have pursued weak and questionable cases. (Cheh, Can Something This Easy, Quick, and Profitable Also Be Fair? Runaway Civil Forfeiture Stumbles on the Constitution (1994) 39 N.Y.L. Sch. L. Rev. 1, 43, 44 [“Runaway Civil Forfeiture”].)

	The financial incentives of OMC section 9.56.090 place the City Attorney in the position of “attempting at once to serve two masters,” the People at large and his office’s and the Oakland PD’s institutional interests in the proceeds from forfeiture. (Eubanks, supra, 14 Cal.4th at p. 596, citing Ganger v. Peyton, supra, 379 F.2d 709, 714; Zimmer, supra, 414 N.E.2d 705, 708.) In these circumstances, the City Attorney cannot fairly and impartially  determine whether probable cause truly exists for the seizure or forfeiture of vehicles^19; decide who is entitled to receive notice of seizure and intent to forfeit or whether a claim has been timely filed such that forfeiture by default is permitted (OMC §9.56.090(C)-(E) & (H)), or evaluate a third party’s right to receive proceeds following forfeiture (OMC §9.56.090(A))^20; balance the societal – as opposed to the financial – costs and benefits of forfeiture on the merits versus a monetary settlement in lieu of forfeiture^21; or assess the viability of constitutional defenses to forfeiture – such as disproportionality and “innocent ownership.” (Comp., ¶¶ 39-49, 64-67, 86-93.)^22  In sum, the financially interested City Attorney’s reliance on the financially interested and already untrustworthy Oakland PD, and vice-versa, presents a constitutionally disqualifying bias, squared !!

^19
	See Connally v. Georgia (1977) 429 U.S. 245, 250 [50 L. Ed. 2d 444 97 S. Ct. 546] [due process violation where judge was paid for issuance of warrants based on finding of probable cause, but not paid when he declined to issue a warrant]; compare Jones v. Greene (Tn. Ct. of App. 1996) 946 S.W.2d 817 [no due process violation because forfeiture revenue deposited into state’s General Fund]; United States v. Terry (SDNY. 1992) 806 F. Supp. 490, 495-496 [no conflict of interest because revenue generated from AG’s prosecution of a related civil action goes into the state’s general fund].

^20
	The conflict arises because the less number of people afforded notice, the greater the potential for forfeiture and the less likely proceeds will be rewarded to “innocent” third parties; and the City Attorney and Oakland PD receive all forfeiture proceeds which are not allocated to “innocent” third parties (OMC §9.560.90(A)-(C)), so the City Attorney’s financial interests are at odds with the rights and interests of third parties.  Additionally,  when the City Attorney unilaterally declares forfeiture by default (OMC §9.56.070(H)), he impermissibly serves as the sole adjudicator in a case where he has a direct financial interest. (In re Murchison (1955) 349 U.S. 133 [99 L. Ed. 942, 75 S. Ct. 623]; Medical Center Commission, supra, 689 F.2d 693, 699-700.)

^21
	See Clancy, supra, 39 Cal. 3d 740, 745-750; Young, supra,  481 U.S. at pp. 805-806.  Parmar, supra, 86 Cal.App.4th at pp. 793-797; Ganger v. Peyton, supra, 379 F.2d at pp. 709-712; State v. Eldridge, supra, 951 S.W.2d 775, 779-783; Policing for Profit, supra,  65 U. Chi. L. Rev. 35, 70-74; The Next Stage of Forfeiture Reform, supra, 14 Fed. Sent. R. 76, fns.27-39. Bessler, The Public Interest and the Unconstitutionality of Private Prosecutors (1994)  47 Ark. L. Rev. 511, 590; Moran, Private Prosecutors in Criminal Contempt Actions Under Rule 42(b) of the Federal Rules of Criminal Procedure (1986) 54 Fordham L. Rev. 1141, 1158-1159; Sidman, The Outmoded Concept of Private Prosecution (1976) 25 Am. U. L. Rev. 754, 793.

^22
	In Bennis v. Michigan (1996) 516 U.S. 442 [116 S. Ct. 994, 134 L.Ed. 2d 68], a heavily divided Supreme Court found that due process was not offended by the forfeiture (via nuisance abatement) of a wife’s interest in an automobile used by her husband to solicit an act of prostitution.  In her concurring opinion, Justice Ginsburg stated the court was not sanctioning or condoning “an experiment to punish innocent third parties” (516 U.S. at p. 458) because the vehicle in question belonged to John Bennis (the offender) as much as it did to his wife, Tina Bennis.  Thus, this was not a case of innocent third party ownership. (Id., p. 457.) What can be gleaned from Bennis is not that the U.S. Constitution provides no protection to “innocent owners,” but that five justices (the four dissenters plus Justice Ginsburg) believe forfeiture of the property of an innocent third party owner is constitutionally impermissible. 

	Moreover, the due process clause of the state constitution operates independently of and often provides much greater protection than its federal counterpart. (People v. Brisendine, supra, 13 Cal. 3d 528, 548-550.)  A California court is thus free to reject Bennis and to conclude that due process under the California Constitution protects “innocent owners” (including spouses) from forfeiture under Chapter 9.56 because, in sum, “federal law is less respectful of the rights of innocent people” than we are in California. (State v. Nunez, supra, 2 P.3d 264 [rejecting Bennis under New Mexico’s due process clause].)

	In this respect, it is important to appreciate that Bennis was decided by a bare majority over passionate dissents from Justices Stevens, Souter and Breyer (jointly) and Kennedy (separately); Justice Thomas’ concurrence was hardly a ringing endorsement of the outcome (Bennis, supra, 516 U.S. at p. 454 [“This case is ultimately a reminder that the Federal Constitution does not prohibit everything that is intensely undesirable”]); and Justice Ginsburg’s concurrence refused to sanction the forfeiture of property of an innocent third party owner based on the conduct of a non-owner (id., pp. 457-458); and both the outcome of the case and reasoning of the majority have been the subject of extensive critical commentary. (People v. $9,632.50 United States Currency (1998) 64 Cal.App.4th 163, 172, fn. 6.) 

	Many state courts have departed from Bennis when construing the due process protections afforded by their own state constitutions (State v. Nunez, supra, 2 P.3d 264; Threlkeld v. State of Mississippi (Miss. Supreme Ct. 1991) 586 So.2d 756; State v. 1979 Pontiac Trans Am (N.J. Supreme Ct. 1985) 487 A.2d 722, 727; Alaska v. Cessna Finance Corp. (Alaska Supreme Ct. 1981) 626 P.2d 104, 110-115), and other state courts have noted their concerns but avoided the constitutional issue by interpreting state statutes to allow for an “innocent owner” defense. (State v. Shimits (1984) 10 Ohio St. 3d 83, 461 N.E.2d 1278; Barra v. Wiebler (1984) 127 Ill. App. 3d 488, 468 N.E.2d 1007; 1979 Pontiac Trans Am, supra, 487 A.2d 722, 727; In re One 1986 Pontiac Firebird (Del. Superior Ct. 1996) 1996 Del. Super. LEXIS 156.)

	California has expressly codified its intent to protect “innocent owners” (Hlth. & Sfty. Code §11469, subd. (j)) and in accordance with that intent an “innocent owner” defense is available under all of California’s forfeiture and impound statutes. (See Hlth. & Sfty. Code §§11470, subd. (g), and 11488.5, subd. (e); Fish & Game Code §12157, subd. (2); Pen. Code §§186.4, subd. (a), 186.6, subd. (d), 186.7, subd. (b), and 186.8, subd. (a); Veh. Code §§14602.5, 14602.6, subd. (b) [as interpreted by Smith v. City of Santa Rosa (2002) 97 Cal. App. 4th 546], 14602.7, subd. (b)(1)(C), & 14607.6, subds. (a), (c)(5) and (d)(1); and see People v. One 1953 Buick 2-Door (1962) 57 Cal. 2d 358 [discussing how legislative action affects the “innocent owner” defense under California law].)

	At this juncture, the court need not decide whether and to what extent the California Constitution protects innocent owners, only to appreciate that the absence of protection for innocent owners gives rise to “substantial” constitutional concerns (Krimstock, supra, 306 F.3d 40, 55-56); and the City Attorney is unable to participate in an impartial dialogue because of the pecuniary interests his office and the Oakland PD have in forfeiture. (Eubanks, supra, 14 Cal.4th at pp. 595-596; Barboza, supra, 29 Cal.3d 375, 378-381.)

	Further, even if “innocent ownership” is not a constitutionally viable defense, it is still a tremendously important factor in the exercise of prosecutorial discretion; and the exercise of such discretion is tainted when the City Attorney has a direct pecuniary interest in forfeiture proceedings.

	Respondents nonetheless insist that Jerrico, supra, 446 U.S. 238, compels the conclusion that the pecuniary incentives of OMC section 9.56.090 do not violate due process. In Jerrico, the High Court found no improper pecuniary interest where the penalty assessments did not go directly to the local branch of the Employment Standards Administration (“ESA”) of the Department of Labor prosecuting the enforcement actions but instead where made part of the ESA’s overall budget (making up “substantially less than 1%”), and the ESA routinely returned to the Treasury Department surplus budgetary allocations in an amount which substantially exceeded the overall penalties received (446 U.S. at pp. 245-246 and fns. 6 & 7, and pp. 250-251) such that the “challenged [penalty] provisions [did not actually] ... result[ ] in any increase in the funds available to the ESA over the amount appropriated by Congress.” (Id., at p. 246; and see id. at pp. 250-251.)  The High Court also found important the fact that in the only year that the ESA allocated a portion of penalty assessments to local branches, it did so in accordance with the costs incurred in prosecuting enforcement actions, not in accordance with the amount of penalty assessments generated by the prosecutions^23; and since it was the national office of the ESA and not any local branch administrator that decided how to allocate civil penalties, the local administrators had no assurance that the penalties they assessed and pursued would be returned to their offices at all.  (Id., pp. 246, 250-252.)

^23
	“In 1976, the sums collected were allocated to and retained  by the ESA national office; in 1977, they were allocated to the national office, to the Office of the Solicitor of Labor, and to the various regional offices in proportion to the amounts expended on enforcement of the child labor provisions [fn. 8]; and in 1978, the penalties were held in the Treasury.” (446 U.S. at p. 246, fn. omitted.)

	What is remarkable about the factors that led the Jerrico Court to find the imposition of the statutory penalties by ESA branch administrators did not violate due process, is that in the case of forfeiture under Chapter 9.56, “every one cuts the other way, and to an extreme degree.”  (Policing for Profit, supra, 65 U. Chi. L. Rev. 35, 63; see also id., at p. 66.) 
	As our Supreme Court notes in Eubanks, supra, 14 Cal.4th 580, the outcome in Jerrico is primarily based on the ESA’s unique “budgeting system” which “guarantees there is no ‘realistic possibility’ the prosecuting officer will be influenced by ‘the prospect of institutional gain.’" (Eubanks, supra, 14 Cal.4th 580, 596.)  The danger of prejudice in the instant case is “not so tenuous” (Barboza, supra, 29 Cal. 3d 375, 380-381 [distinguishing Jerrico]) because forfeiture revenue goes directly to the City Attorney’s office and Oakland PD (OMC §9.56.090(B) and (C)), and is guaranteed to be in addition to their general budgetary allocations (id., §9.56.090(D)); and thus OMC section 9.56.090 is intended to and does increase the funds available to the City Attorney and Oakland PD over the amount appropriated by federal, state and local governments. (Comp., ¶¶ 86-93, 95-96; compare Jerrico, supra, 446 U.S. 238, 246, 250-252.) 
	Additionally, unlike Jerrico, the revenue allocated to the City Attorney and Oakland PD from forfeiture is not limited to the costs incurred in investigating or prosecuting the forfeiture actions (see OMC §9.56.090(B) and (C)), so there is a substantial risk that the Oakland PD and City Attorney will improperly seize property, pursue forfeiture prosecutions, and press for forfeiture judgments or substantial monetary settlements in lieu of forfeiture as a means to increase the revenue available to them. (See Barboza, supra, 29 Cal. 3d 375, 378-381; Eubanks, supra, 14 Cal.4th at pp. 595-596; Baca v. Padilla, supra, 190 P. 730, 732 [prosecutor must not have a financial incentive to “fatten his purse”]; Young, supra, 481 U.S. at pp. 805-806; and see ARJN ## 13-17.)  And because the monetary distribution provisions of OMC section 9.56.090 are mandatory, the City Attorney and Oakland PD are assured that the proceeds from forfeiture will go directly to their agencies.  Thus, the more vehicles seized and forfeiture revenue generated, the greater the financial rewards. (Runaway Civil Forfeiture, supra, 39 N.Y.L. Sch. L. Rev. 1, 3-4; compare Jerrico, supra, 446 U.S. pp. 246, 250-252.)
	Paraphrasing Barboza – whose reasoning applies equally to prosecutors (Eubanks, supra, 14 Cal.4th at pp. 595-596):
The City Attorney’s budget and that of the Oakland PD are directly affected by his determinations to seek forfeitures or monetary settlements in lieu thereof, or oppose a distribution of forfeiture proceeds to third parties. (See OMC §9.56.090(A)-(D).) No matter how well-intentioned the City Attorney might be, the monetary distribution provisions of Chapter 9.56 place him in a situation with grave consequences and implications for the administration of justice.  Not only is there an "appearance of impropriety," there is also a real and insoluble tension between the City Attorney’s conflicting interests to do what justice requires and his interests in the budget of his office and the offices of his law enforcement colleagues. (People v. Barboza, supra, 29 Cal. 3d 375, 380-381 [distinguishing Jerrico].)

	Moreover, Jerrico was decided more than 20 years ago when the state of the economy and budgetary constraints were much different than they are today.  The time has long passed when, as in Jerrico, a prosecutorial or law enforcement agency in this state could reasonably expect to consistently run a budget surplus. (Eubanks, supra, 14 Cal. 4th 580, 598, 600 [noting that the funding was limited for the investigation and prosecution of the particular crime at-issue]; and id., at pp. 602-603 (George, C. J. conc.) [the issue is the likely influence upon the “financially strapped” prosecutor].)  The incentive for the City Attorney and Oakland PD to supplement their budgets through forfeiture violates due process by injecting financial interests into the enforcement process (see Eubanks, supra, 14 Cal.4th at pp. 595-596, citing Jerrico, supra, 446 U.S. at p. 250) which carry a significant potential for “devastating” government abuse. (Libretti v. United States (1995) 516 U.S. 29, 43 [133 L. Ed. 2d 271, 116 S. Ct. 356].)^24 

^24
	David Smith, the former Associate Director of the Department of Justice’s Asset Forfeiture Office, agrees that schemes which allocate a portion of forfeiture to police and  prosecutors would probably fail to pass constitutional muster under Jerrico. (Prosecution and Defense of Forfeiture Cases (Matthew Bender 2000), Release 27, §1.01 at 1-8.1, n. 21.)  With an unknowing eye toward this case, Smith adds that it is “remarkable” that these type of statutory schemes have not yet been challenged on due process grounds. (Ibid.)

	Further, in Jerrico the threat alleged to exist was solely based on the potential for overzealous prosecution for purposes of monetary gain, whereas here the threat which exists is both over- and under- zealous prosecution – each of which provides monetary rewards to the City Attorney and Oakland PD.  The City Attorney must negotiate a monetary settlement in lieu of forfeiture or secure an order of forfeiture or the Oakland PD and City Attorney do not receive a dime and must bear the costs of the seizure and forfeiture prosecution. (OMC §9.56.090(B)-(C).).)  The Oakland PD and City Attorney thus have an improper financial incentive to seize vehicles, pursue forfeitures and demand monetary settlements (or higher settlements) where they otherwise might not. (See Clancy, supra, 39 Cal. 3d 740, 745-749; Young, supra, 481 U.S. at pp. 805-806; Baca v. Padilla, supra,  190 P. 730, 732; Price v. Caperton, supra, 62 Ky. 207, 208 ["A contingent fee dependent on conviction ought never to be permitted”].) And once a vehicle is seized, a hearing on the merits does not occur for many months, during which time a vehicle is held at the expense of the City Attorney. (OMC §9.56.090(B).)  The costs of forfeiture, including storage costs, can exceed the value of the vehicle seized (People v. 6344 Skyway Paradise, California (1999) 71 Cal. App. 4th 1026, 1034), and the proceeds of forfeiture can be awarded to third parties instead of the City Attorney and Oakland PD (OMC §9.56.090(A)) –  leaving those agencies without recompense.  As such, the City Attorney has an improper financial incentive to forgo meritorious forfeiture prosecutions and to settle cases early and often in order to generate the most money for the City Attorney’s office and the Oakland PD. (See Young, supra, 481 U.S. at pp. 805-806; Ganger v. Peyton, supra, 379 F.2d at pp. 711-712; State v. Eldridge, supra, 951 S.W.2d 775, 783; People v. Barboza, supra, 29 Cal. 3d 375, 379-381; Comp.,¶¶ 32-33, 42-55.)
	Not surprisingly, the City Attorney acts precisely as his financial interests would dictate.  Once a vehicle is seized, the City Attorney never releases it without compensation and rarely forfeits it on the merits.  Instead, he negotiates a monetary settlement in lieu of forfeiture in over 98% of non-default cases. (Comp., ¶¶ 50-55 [over 500 vehicles seized, only 6 hearings on the merits].)  The whole arrangement has about it the air of "let's make a deal," or worse, undue coercion. (Runaway Civil Forfeiture, supra, 39 N.Y.L. Sch. L. Rev. 1, 45.)  Chapter 9.56 may be titled as a “nuisance abatement” ordinance, but in reality it is nothing more than “a roulette wheel employed to raise revenue.” (Bennis v. Michigan, supra,  516 U.S. 442, 456 (Thomas, J. conc.).)  The innocent pay to secure release when they should not have to and the guilty are allowed to secure release when they should not be able to; and the payments they make have nothing to do with culpability and everything to do with their financial status. (Comp., ¶¶ 42-59; and see Libretti, supra, 516 U.S. 29, 56 (Stevens, J. diss.) [under such a system, it is not unreasonable to believe a wealthy defendant can buy prosecutorial leniency].) This is the antithesis of the City Attorney’s and Oakland PD’s constitutional obligation to ensure that “guilt shall not escape or innocence suffer."  
	The City and Oakland PD have no credibility on which to rely.  They have repeatedly demonstrated their inability to prevent abuse by law enforcement officers and have yet to rebuild the community’s trust. (ARJN ##13-17; United States v. Reese, supra, 2 F.3d 870, 874-880.)  “What is at stake is the public perception of the integrity” of our justice system:  “Justice must satisfy the appearance of justice,” and a financially interested City Attorney and Oakland PD “presents the appearance of precisely the opposite.” (Young, supra, 481 U.S. at p. 812.) Without "both the appearance and reality of fairness” which "generat[es] the feeling, so important to a popular government, that justice has been done" (Jerrico, supra, 446 U.S. 238, 242), the confidence of society is lost and “the concept of the rule of law cannot survive.” (Clancy, supra, 39 Cal. 3d 740, 746; see also Zimmer, supra, 414 N.E.2d 705, 707-708; Brotherhood, supra, 411 F.2d 312, 319-320.)
	Declaratory and injunctive relief are therefore appropriate, so the trial court erred in sustaining respondents’ demurrer to the First and Fifth Causes of Action. 

B.  	The Second and Seventh Cause of Action state valid claims for relief on the grounds that Chapter 9.56 – on its face and as applied – violates due process and the Fourth Amendment by failing to afford a prompt post-seizure “probable cause” hearing in which the court preliminarily assesses the merits of forfeiture and has authority to release a vehicle pendente lite.

	Because of the lengthy delay between the non-adversarial warrantless seizure of vehicles and a hearing on the merits (Comp. ¶¶ 25-28, 34-35, 60, 106), the Fourth Amendment and due process require a prompt “probable cause” hearing in which the court preliminarily assesses the factual and legal basis for forfeiture and has the opportunity to release a vehicle pendente lite. (Krimstock, supra, 306 F.3d 40; State ex rel. Schrunk v. Metz (Oregon App. 1993) 125 Ore. App. 405, 415-418 [867 P.2d 503].)  Appellants properly seeks such relief in their Second and Seventh Causes of Action. (Comp., ¶¶ 69-73, 101-111.)
	1. 	Application of the Fourth Amendment.
	As discussed in United States v. One 1995 Chevrolet Tahoe (W.D. Tenn. 1999) 108 F. Supp. 2d 954, 957, the Fourth Amendment demands that a law enforcement agency’s probable cause determination be subject to some type of prompt judicial review after a warrantless arrest. (Gerstein v. Pugh (1975) 420 U.S. 103, 113-14 [43 L. Ed. 2d 54, 95 S. Ct. 854]; County of Riverside v. McLaughlin (1991) 500 U.S. 44, 57 [114 L. Ed. 2d 49, 111 S. Ct. 1661]; In re Walters (1975) 15 Cal.3d 738, 751-752.)^25 This rule should apply equally to the seizure of vehicles under Chapter 9.56 because nuisance abatement/forfeiture is “quasi-criminal” in nature (One 1958 Plymouth Sedan v. Pennsylvania (1965) 380 U.S. 693, 700 [14 L. Ed. 2d 170, 85 S. Ct. 1246]), stems from criminal activity (OMC §9.56.010),  “is in aid of and auxiliary to the enforcement of the criminal law” (Board of Supervisors v. Simpson (1951) 36 Cal. 2d 671, 674), and shares many of the same due process concerns as criminal proceedings. (Clancy, supra, 39 Cal. 3d 740, 745-749.) 

^25
	California law requires a probable cause hearing within 10 days in felony cases (Pen. Code §859b) and 3 days in misdemeanor cases (Pen. Code §991), and permits release from custody on bond or SOR/OR pending trial in both felony and misdemeanor cases (Pen. Code §§1268 et. seq., and 1318, et. seq.) – which the court generally considers at the arraignment no more than 48 hours after arrest. (Pen. Code §825.)

“For the like warrantless seizure and arrest of a person, the same constitutional guarantee in the Fourth Amendment requires that a judicial determination of probable cause be made promptly as a prerequisite to pretrial detention of the person. ... Logically, similar promptness should be necessary for judicial attention to a warrantless seizure of property.

“ [¶¶ ...] The short time [required] for judicial attention to a warrantless seizure of a person is ... closely related -- if it is not exactly the same -- to the time essential for judicial attention to a warrantless seizure of movable property. [¶¶ ...]  While I do not suggest that it should be heightened to the same level of scrutiny as an ex parte loss of liberty, which occurs with a warrantless arrest, an ex parte loss of property on a warrantless seizure carries with it the same policy consideration, which is that an ex parte seizure of private property by the government is of sufficient concern so as to require ... a ‘prompt’ probable cause determination.” (State v. One Black 1989 Cadillac (N.D. Supreme Ct. 1994) 522 N.W.2d 457, 468-471 (Meschke, J., concurring) [internal citations omitted].)

	In the absence of prompt post-seizure review by a neutral fact-finder, there arise “grave Fourth Amendment concerns as to the adequacy of an inquiry into probable cause that must wait months or sometimes years before a civil forfeiture [hearing] takes place” (Krimstock, supra,  306 F.3d 40, 50-51); and these concerns are heightened by the fact that the decision to seize property is based on a one-sided view of the facts and law and dependent upon information provided by the Oakland PD which cannot be considered wholly neutral (Morrissey v. Brewer (1972) 408 U.S. 471, 485-486 [33 L. Ed. 2d 484, 92 S. Ct. 2593];Stypmann  v. City and County of San Francisco (9^th Cir. 1977) 557 F.2d 1338, 1343) and ha not credibility to begin with because of its history of abuse (ARJN ##13-17); and the City Attorney and Oakland OD “ha[ve] a direct pecuniary interest in the outcome of the proceeding” (Krimstock, supra,  306 F.3d 40, 51; Luedeke v. Village of New Paltz (N.D. N.Y. 1999)  63 F. Supp. 2d 215, 221),  which skews their ability to make a fair assessment of the propriety of seizure and forfeiture and gives rise to the risk that they will leverage an owner’s immediate need for his vehicle in order to obtain tidy monetary settlements and thereby avoid judicial scrutiny (Civil In Rem Forfeiture and Double Jeopardy, supra,  82 Iowa L. Rev. 183, 220) – which is precisely what the City Attorney does. (Comp., ¶¶ 32-42, 48, 50-55, 102-111.) 
	In recognition of these constitutional requirements and concerns, federal forfeiture laws provide for either a pre- or post-seizure probable cause evaluation by the court (and in some instances both), and also provide for release pending a determination on the merits. (Krimstock, supra, 306 F.3d at pp. 50, 61-62 and fn. 23; see also 18 U.S.C. §985, subd. (e) [if the court authorizes an ex-parte seizure of real property “it shall conduct a prompt post-seizure hearing”].) Similarly, many states provide for a prompt post-seizure probable cause hearing or other mechanism to secure release of property pending a final determination on the merits, including California. (Krimstock, supra, 306 F.3d at pp. 54-55; Hlth. & Sfty. Code §§11488.4, subds. (g) and (h), and 11492, subd. (c).)  No such provisions are available under Chapter 9.56 and for this reason it fails to satisfy the commands of the Fourth Amendment. (Krimstock, supra, 306 F.3d at pp. 50-51.)^26   

^26
	As the federal and state statutes just discussed show, the court in One 1995 Chevrolet Tahoe, supra, 108 F. Supp. 2d 954, was flat wrong when it said: “In civil matters, probable cause hearings are not conducted. Forfeiture proceedings, brought pursuant to 21 U.S.C. @ 881 are, by definition, civil in nature. Thus, it would seem that a probable cause hearing is not warranted.” (Id., pp. 956-957.)  But even being flat wrong on this point, the court still went on to correctly find that a prompt post-seizure probable cause hearing is constitutionally required where, as here, “a seizure has occurred based upon a non-judicial finding of probable cause.” (Id., p. 959, fn. 9.)

	2. 	Application of the Due Process Clause.
	Turning to the Due Process Clause, the test set forth in Mathews v. Eldridge (1976) 424 U.S. 319 [47 L. Ed. 2d 18, 96 S. Ct. 893], weighs heavily in favor of affording a prompt post-seizure probable cause hearing. (Krimstock, supra, 306 F.3d 40; State ex rel. Schrunk, supra, 125 Ore. App. 405, 415-418 [867 P.2d 503]; Stypmann, supra, 557 F.2d 1338, 1342-1345.)
	a.  	The Private Interest Effected.
	The first factor to be considered in the Mathews inquiry is "the private interest affected by the official action." (Mathews, 424 U.S. at p. 335.) “The deprivation of real or personal property involves substantial due process interests.”(Krimstock, supra, 306 F.3d at pp. 60-61.)  This is especially true where the property is a vehicle, because "automobiles occupy a central place in the lives of most Americans, providing access to jobs, schools, and recreation as well as to the daily necessities of life" (Coleman v. Watt (8th Cir. 1994) 40 F.3d 255, 260-61) and an owner's "ability to make a living" may depend  the "uninterrupted use of an automobile.”(Stypmann, supra,  557 F.2d 1338, 1342-43; Bennis, supra, 516 U.S. at p. 473 (Kennedy, J., diss.) [an automobile “is a practical necessity in modern life for so many people”]; Krimstock, supra, 306 F.3d at p. 61.)
	“Another consideration is the length of deprivation, which increases the weight of an owner's interest in possessing the vehicle.” (Krimstock, supra, 306 F.3d at pp. 61-62.)  Under the plain language of Chapter 9.56 and as applied, a hearing on the merits will not occur until 6-12 months after the initial seizure. (Comp., ¶¶ 34-35,106; Krimstock, supra, 306 F.3d at p. 59.)  In the absence of a probable cause hearing and the opportunity for pendente lite release, this delay is simply too long to satisfy due process. (Krimstock, supra, 306 F.3d at pp. 59-60;  Stypmann, supra, 557 F.2d at p. 1344 [“A five-day delay in justifying detention of a private vehicle is too long” and is “clearly excessive”]; Soffer v. City of Costa Mesa (C.D. Cal. 1985) 607 F. Supp. 975, 983 [to satisfy due process, post-seizure hearing must be held within 48 hours of request], aff'd, 798 F.2d 361 (9th Cir. 1986); Reach v. State (Ala. 1988) 530 So. 2d 40, 41 ["The mandate in the statute that forfeiture proceedings be instituted promptly is necessary to the statute's constitutionality.  The statute contains no provision whereby the owner of a seized vehicle may post a bond and secure the use of his vehicle pending a hearing on the merits concerning the seizure."]; City of Everett v. Slade (Wash. 1973), 83 Wash. 2d 80, 515 P.2d 1295, 1298-99 [a delay of almost two full months does not constitute prompt action]; Carrera v. Bertaini (1976) 63 Cal. App. 3d 721, 729 [“prompt” hearing required; hearing six weeks after seizure is not “prompt” and fails to satisfy due process]; Tyler v. County of Alameda (1995) 34 Cal. App. 4th 777, 781 [“When summary action is justified, due process is satisfied as long as there is a prompt post-deprivation hearing to review the agency's determination.”]; Phillips v. San Luis Obispo County Dept. of Animal (1986) 183 Cal.App.3d 372, 379 [the constitutionality of an ordinance or statute allowing seizure without notice and an opportunity to be heard “rests upon its provision for a prompt post-seizure hearing.”].)
	b.  	The Risk of Erroneous Deprivation Through the Procedures Used and the Probable Value of Other Safeguards.

	The second factor to be considered under the Mathews test is "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." (Mathews, supra, 424 U.S. at 335.)  The particular deprivation with which we are concerned here is the post-seizure, pre-judgment retention of property. (Krimstock, supra, 306 F.3d at p. 62.) Neither the seizing and prosecuting agencies’ unreviewed probable cause determinations (OMC §9.56.050(B)(1); Comp., ¶¶ 25-28) or a court's ruling in the distant future on the merits of the forfeiture claim can fully protect against an erroneous deprivation of a claimant's possessory interest as his or her vehicle sits idle in police custody for months. (Krimstock, supra, 306 F.3d at p. 62.)  	Although Krimstock concludes that, on balance, the second Mathews factor weighed in favor of the City of New York because a trained police officer’s determination that a driver is intoxicated can typically be expected to be accurate (id., p. 62; see also id., pp. 50-51 and fn. 11), it classified the City's victory as “a narrow one” (id., 63) and said:
 “The scales are very nearly in equipoise, however, in light of the comparably greater risk of error that is posed to innocent owners, the City's direct pecuniary interest in the outcome of forfeiture proceedings, and the lack of adequate recompense for losses occasioned by erroneous seizures of vehicles.” (Id., p. 64.)

	Here, in contrast, an Oakland police officer’s or deputy city attorney’s determination that property has been used in connection with drug or prostitution activity is not nearly as reliable as a DUI determination. (See Krimstock, supra, 306 F.3d at pp. 50-51  [contrasting New York’s DUI forfeiture scheme with federal forfeiture for drug offenses].)  This is especially true because the Oakland PD cannot be trusted to begin with (ARJN ## 13-17) and the vagaries of “attempts” under OMC section 9.56.010 give rise to a heightened potential for abuse. (Compare Gates v. Municipal Court (1982) 135 Cal.App.3d 309 with People v. Smith (1978) 44 N.Y.2d 613 [407 N.Y.S.2d 462, 378 N.E.2d 1032].)
	Moreover, regardless of the comparative difficulty of proving the specific offenses at-issue under Chapter 9.56, the failure to afford a prompt hearing following a non-adversarial seizure invariably gives rise to a substantial risk of error (United States v. Michelles Lounge et al (7^th Cir. 1994) 39 F.3d 684, 699; Good Real Property, supra, 510 U.S. 43, 54-56), which increases because seizures occur “based upon a non-judicial finding of probable cause” (United States v. One 1995 Chevrolet Tahoe, supra, 108 F. Supp. 2d 954, 959, fn. 9), the Oakland PD and City Attorney have a pecuniary interest in the property seized (Krimstock, supra, 306 F.3d at p. 63; Good Real Property, supra, 510 U.S. 43, 54-56), and the City and Oakland PD have “encouraged or ignored” abuse by police officers in the past. (ARJN ## 13-17; United States v. Reese, supra, 2 F.3d 870, 874-880.)
	Additionally, even where there is probable cause to believe that a criminal offense giving rise to forfeiture has been committed, other factors come into play with respect to the legality of seizure and forfeiture, such as “innocent ownership” and the Eighth Amendment Excessive Fines Clause.  The fact police have not erred in concluding an offense has been committed “is no comfort to the owner of a vehicle that has been seized because someone else operated it in violation of the law.” (State v. Hochhausler (Ohio Supreme Court, 1996) 668 N.E.2d 457, 466.) The post-seizure hearing on the merits provided by Chapter 9.56 affords little or no protection to innocent owners because the impoundment of their vehicle – and the corresponding hardship suffered by the deprivation – occurs long before the owner’s innocence is considered.  (Kutschbach v. Davies (S.D. OH 1995) 885 F. Supp. 1079, 1091-1092.) The police officer or deputy city attorney ordering the seizure and retention of the vehicle  determines only that the driver has engaged in a criminal offense giving rise to forfeiture (OMC §§9.56.010 & 9.56.040(B)(1)), and does not consider evidence on the question of innocent ownership or other potential constitutional defenses an absent owner might have. (Good Real Property, supra, 510 U.S. 43, 54-56; Comp., ¶¶ 56-58.)  There is thus an unacceptable risk of erroneous deprivation of innocent owners’ vehicles. (Good Real Property, supra, 510 U.S. 43, 54-56;  Kutschbach, supra, 885 F. Supp. 1079,  1091 [risk “is extraordinarily high”]; Krimstock, supra, 306 F.3d at pp. 55-58 [“heightened potential for error”] and p. 63 [risk of error is “substantial”]; Hochhausler, supra, 668 N.E.2d 457, 466 -467 [risk of error is “extremely high”]; and see ARJN ##13-17.) Although an erroneous deprivation ultimately would be terminated following a hearing on the merits, “given the importance of the property interest affected, even the temporary denial of possession and use of the vehicle inflicts too severe a hardship on the individual wrongfully deprived.” (Hochhausler, supra, 668 N.E.2d 457, 467; and see Kutschbach v. Davies, supra, 885 F. Supp. 1079, 1093 [“No governmental interest justifies a delay of several days before the government is required to establish probable cause” for the seizure of a presumptively innocent owner’s vehicle].)
	In sum, the second Mathews factor, like the first, weighs in favor of appellants.
	c.  	The Government’s Interest.
	The third Mathews factor examines "the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." (Mathews, supra, 424 U.S. at p. 335.) 
	In Krimstock, the City of New York relied on Calero-Toledo v. Pearson Yacht Leasing Co. (1974) 416 U.S. 663 [40 L. Ed. 2d 452, 94 S. Ct. 2080] to argue that it should be permitted to retain possession of property pending a final determination on the merits in order to prevent the property from being sold or destroyed before a court can render judgment.  As Krimstock properly concludes, the critical difference between Calero-Toledo and the present case is that the property at-issue here has already been seized and is in the hands of law enforcement or prosecutorial authorities, so there is no danger that the property will abscond or be sold or destroyed if a probable cause hearing is provided.  (Krimstock, supra, 306 F.3d at pp. 65-66.)  Moreover, the forfeiture statute at-issue in Calero-Toledo provided for notice within 10 days of seizure and an immediate, post-seizure hearing upon the submission of a claim opposing the seizure. (Calero-Toledo, supra, 416 U.S. at pp. 65-66 and fn. 2.) As already discussed, no similar provision is present here.
	Continued retention may be unjustified when other means of restraint would accomplish the City's goals. (Krimstock, supra, 306 F.3d at p. 65-66, citing Good Real Property, supra, 510 U.S. at p. 59 [in the usual case, the Government has various means, short of seizure, to protect its interests in forfeitable property].)  To ensure that the City's interest in forfeitable property is protected, claimants could post bonds or a court could issue a restraining order to prohibit the sale or destruction of the property pendente lite. (Krimstock, supra, 306 F.3d at p. 66 and fn. 26.)  A bond is in some respects a superior form of security because it entails no storage costs or costs of sale. (Id. at p. 66; and see People v. 6344 Skyway Paradise, California, supra, 71 Cal. App. 4th 1026, 1034 [storage costs often exceed the value of the property seized]; OMC §9.56.090(B) [storage costs are paid from forfeiture proceeds]; Comp., ¶¶ 43-45.)   
	A second reason offered by the City of New York in Krimstock for continued retention is the need to prevent the seized property from being used as an instrumentality in future criminal acts. (Krimstock, supra, 306 F.3d at pp. 66-67.) But the hearing sought by appellant is designed to determine whether there is in fact probable cause to believe the property was used as an instrumentality of crime, to assess the likelihood of its future use in a similar manner pendente lite, and to determine whether a claimant is likely to prevail on an affirmative defense such as “innocent ownership” or disproportionality under the Excessive Fines Clause. (Ibid.)  
	Moreover, continued retention of property pendente lite is ill-suited to prevent recidivism because it leaves the alleged offender free to engage in criminal conduct through the use of other un-seized vehicles (or by non-vehicular means), while depriving potentially innocent owners of the often indispensable benefits of daily access to their property. (Krimstock, supra, 306 F.3d at pp. 66-67; Bennis, supra, 516 U.S. at p. 465 (Stevens, J. diss.) [“confiscating petitioner's car does not disable her husband from using other venues for similar illegal rendezvous, since all that is needed to commit this offense is a place”; the need to “abate” the car as a “nuisance” disappears the moment it is no longer being used for illicit purposes].)  It is not the vehicle, but the person who used the vehicle to engage in illegal activity, which poses the danger to society. (Krimstock, supra, 306 F.3d at p. 66, citing Austin v. United States (1993) 509 U.S. 602, 621 [125 L. Ed. 2d 488, 113 S. Ct. 2801] ["There is nothing even remotely criminal in possessing an automobile."]; Alaska v. Cessna Finance Corp., supra, 626 P.2d 104, 111-115 [there is no justification to seize and forfeit property belonging to an “innocent owner,” because it is the offender, not the property, which causes harm, and resort to a legal fiction requiring a contrary outcome is untenable under the Alaska Constitution].)^27

^27
	Respondents can hardly claim they have a compelling need to hold vehicles pendente lite to prevent recidivism when in non-default cases they release over 98% of seized vehicles pursuant to monetary settlements in lieu of forfeiture. (Comp., ¶¶ 50-55, 103-105, 107.)

	With respect to the burden on the City, complying with its constitutional obligation to provide a prompt “probable cause” hearing should not be unduly burdensome for the City Attorney or Oakland PD, as “[a]ll that [they] would be required to do is provide to [the court and vehicle] ... owners information that is already in [their] possession” and on which their decisions to seize and hold a vehicle is based. (Gete v. INS (9th Cir. 1997) 121 F.3d 1285, 1298-1299.)  That the State of California provides for similar hearings in forfeiture proceedings (see Hlth. & Sfty. Code §§11488.4, subds. (g) and (h)), is additional evidence that the procedure sought is not overly burdensome. (State ex rel. Schrunk, supra, 125 Ore. App. 405, 418 [867 P.2d 503].) Indeed, by requiring a hearing, the court would require nothing more than what law enforcement and prosecuting agencies are required to do on a daily basis in hearings to set or reduce bail or consider release on SOR or OR (Pen. Code §§1268 et. seq., and 1318, et. seq.), establish probable cause for charges (Pen. Code §§859b, 866, 871, 872, 991), or determine the legality of a search or seizure or the continued retention of seized property (Pen. Code §1538.5). (See United States v. $191,910.00 in United States Currency, supra, 16 F.3d 1051, 1067.)
	Accordingly, appellants have scored a figurative “hat trick” on the Mathews factors. 
	3. 	Inapplicability of United States v. $ 8,850 and United States v. Von Neumann.

	The result compelled by the Fourth Amendment and due process is not altered by the fact that the Supreme Court in United States v. $ 8,850 (1983) 461 U.S. 555 [76 L. Ed. 2d 143, 103 S. Ct. 2005] and United States v. Von Neumann (1986) 474 U.S. 242 [88 L. Ed. 2d 587, 106 S. Ct. 610] apply the criminal speedy trial test set forth Barker v. Wingo (1972) 407 U.S. 514 [33 L. Ed. 2d 101, 92 S. Ct. 2182], in finding that lengthy delays in filing a customs forfeiture action or ruling on a request for remission do not violate constitutional due process guarantees. The Constitution distinguishes between the need for prompt review of the propriety of continued government custody, on the one hand, and delays in rendering final judgment, on the other. (Krimstock, supra, 306 F.3d at p. 68-70; and compare Gerstein v. Pugh, supra, 420 U.S. 103, County of Riverside v. McLaughlin, supra, 500 U.S. 44, and In re Walters, supra, 15 Cal.3d 738 [constitutional right to timely hearing to justifying continued custody following warrantless arrest], with Barker v. Wingo, supra, 407 U.S. 514 [constitutional right to speedy trial].)
	Moreover, in United States v. $ 8,850, supra, 461 U.S. 555, 569, the court notes that if a claimant believes the initial seizure of property is improper, he can file a motion under Federal Rule of Criminal Procedure 41(e) for a return of the seized property; and in Von Neumann, a bond procedure was available and the claimant availed himself to it, thereby securing the release of his car pendente lite. (474 U.S. at p. 250-251.)  There are no similar provisions available here.
	Additionally, $8,850, supra, 461 U.S. 555, 569, and Von Neumann, supra, 474 U.S. at p. 244, fn. 3, both suggest that if a claimant is unhappy with the pace of the forfeiture proceedings, he can file an equitable action seeking an order compelling the filing of a forfeiture action or return of the seized property.  But here, OMC section 9.56.080(B)(3) expressly prohibits joinder or coordination of actions and thus precludes the equitable action suggested by the High Court.  Further, securing release by virtue of a collateral action involves the same type of delay challenged here, because the vehicle sits in police custody until the equitable action runs its course.  And in any event, the burden should be on the City to provide procedural due process in the first instance, not on forfeiture claimants to file expensive lawsuits compelling the City to provide the requisite due process protections. (Krimstock, supra, 306 F.3d at pp. 59-60; Luedeke v. Village of New Paltz, supra, 63 F. Supp. 2d 215, 223-224.)
	Therefore the Second and Seventh Causes of Action state valid claims for declaratory and injunctive relief.
C. 	The Third and Sixth Causes of Action state viable claims for relief on the grounds that Chapter 9.56 –  on its face or as applied –  violates the state and federal Excessive Fines clauses.
	
	In United States v. Bajakajian (1998) 524 U.S. 321 [141 L. Ed. 2d 314, 118 S. Ct. 2028], the  U.S. Supreme Court was careful to note that because forfeiture laws “have blurred the traditional distinction between civil in rem and criminal in personam forfeiture, we have held that a modern statutory forfeiture is a ‘fine’ for Eighth Amendment purposes if it constitutes punishment even in part, regardless of whether the proceeding is styled in rem or in personam.” (Id., at p. 331, fn. 6, citing Austin v. United States, supra, 509 U.S. 602, 621-622; People v. Castellanos (1999) 21 Cal. 4th 785, 792-793.)^28 

^28
	Concurring in Austin, Justice Scalia, joined by Justice Kennedy, expressed the view that all forfeitures “must be considered, in whole or in part, ... punitive” and thus subject to the Excessive Fines Clause. (509 U.S. at pp. 625-627.)

	As Austin makes clear, Chapter 9.56 is subject to the Eighth Amendment Excessive Fines Clause because forfeiture is predicated on the commission of a criminal act (OMC §9.56.010), the forfeiture amount is not limited by the extent of the government's loss (OMC §9.56.090)^29, and there is a clear  indication from the overall language of Chapter 9.56 and its legislative history that the City intended forfeiture to serve deterrent and punishment purposes as well as remedial purposes; and thus Chapter 9.56, at least in part, constitutes punishment. (Austin, supra, 509 U.S. 602, 618-622.) The fact that OMC section 9.56.090(A) permits the distribution of forfeiture proceeds to “innocent owners,” makes Chapter 9.56  “look more like punishment, not less." (Austin, supra, 509 U.S. at p. 619; see also United States v. One 1997 Ford Expedition Util. Vehicle (Dist Ct. N.M. 2001) 135 F. Supp. 2d 1142, 1145-1147; Hudson v. United States (1997) 522 U.S. 93 [118 S. Ct. 488, 495, 139 L. Ed. 2d 450]; Alexander v. United States (1993) 509 U.S. 544, 558 [125 L. Ed. 2d 441, 113 S. Ct. 2766].)^30  This especially true when the court considers that in non-default cases respondents release over 98% of the vehicles they seize pursuant to monetary settlements in lieu of forfeiture, thereby failing to “abate” the “nuisance” which serves as grounds on which respondents insist the ordinance is remedial. (Comp., ¶¶ 50-55, 103-105, 107, 115-121.)   

^29
	A brand-new luxury sedan or a 10-year-old used car would be equally forfeitable.  Such "dramatic variations" in the value of vehicles subject to forfeiture undercut any argument that forfeiture is reasonably tied to remedial ends. (Bennis v. Michigan, supra, 516 U.S. 442, 471 (Stevens, J., joined by Souter and Breyer, JJ., diss.), citing Austin, supra, 509 U.S. at p 621, and United States v. Ward (1980) 448 U.S. 242, 254 [65 L. Ed. 2d 742, 100 S. Ct. 2636].)

^30
	Respondents contend that Chapter 9.56 is similar to the nuisance abatement statute at issue in Bennis v. Michigan, supra, 516 U.S. 442, but this contention merely underscore the applicability of the Excessive Fines Clause, because the majority in Bennis acknowledged that the statute was, at least in part, punitive (516 U.S. 442, 468-469 (Stevens, J., joined by Souter and Breyer, JJ., diss.); and the dissenters similarly found the statute was subject to Excessive Fines Clause analysis. (Id., at p. 471.)

	Additionally, forfeiture under Chapter 9.56 is meant to extract payment “in kind” by the forced sale of a vehicle “as punishment for [an] offense" (OMC §9.56.010) – which is precisely what the Excessive Fines Clause is designed to monitor. (Austin, supra, 509 U.S. 602, 609-10.) 
	The United States Supreme Court has adopted a "gross disproportionality" test to determine whether a forfeiture is "excessive." “[T]he amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish" and "a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." (Bajakajian, supra, 524 U.S. 321, 334-340; and see City and County of San Francisco v. Sainez (2000) 77 Cal.App.4th 1302, 1321-1322.)  
	In One 1995 Toyota Pick-up Truck v. District of Columbia (D.C. App. 1998) 718 A.2d 558, the court was faced with the forfeiture of a truck based on a single act of soliciting prostitution. Applying the proportionality test of Bajakajian, the court concluded that “the forfeiture of the truck must be deemed a constitutionally excessive fine.” (Id., 565.)  In reaching this conclusion, the court focused on the fact that “[s]olicitation for prostitution, particularly for a first conviction, has historically been treated as a minor crime in the District [of Columbia], and certainly was so treated at the time of [the] conduct [at-issue].” (Ibid.)  The court went on to say:
“[T]he impact of prostitution upon the neighborhoods within which it is practiced is of great civic concern. There no doubt are serious public health and safety aspects to the problem, not to mention the nuisance to residential and business interests well-catalogued by the government in its briefs. There presumably are myriad ways to attempt to deal with these issues. We hold only, following the teachings of the Supreme Court, that the Constitution prevents the utilization of civil forfeiture as a penalty for the commission of an offense where the value of the property forfeited stands in gross disproportion to the gravity of the offense. Such a disproportion exists in the case at bar and the attempted forfeiture therefore violates the Excessive Fines Clause of the Eighth Amendment.” (Id., 718 A.2d 558, 566.)

	In California, as in the District of Columbia, solicitation for prostitution has historically been treated as a very minor crime.  Penal Code section 647, subdivision (b), makes solicitation of prostitution a misdemeanor offense subject to a fine of $1,000.00, but a first time offender can expect to face no more than dismissal following completion of diversion or, at worst, a nominal fine and perhaps a short period of probation.^31   The state authorizes no more than 48 hours of vehicle impoundment for repeat offenses involving the use of a car (Veh. Code §22659.5, subds. (b) and (c)), and it is not until a third conviction that mandatory jail time is required and a court is permitted to suspend or restrict driving privileges. (Pen. Code §647, subd. (k)(2).) 

^31 
	Although one indicium of the gravity of a criminal offense is the maximum penalty authorized by the legislature, Bajakajian holds that the court should consider the actual penalty imposed on the particular offender as a way to estimate his level of culpability. (Bajakajian, supra, 524 U.S. at 332, fn.14; see also One 1995 Toyota Pick-up Truck, supra, 718 A.2d at p. 566, fn. 16.)  If an offender receives only a small percentage of the maximum possible penalty, it is more likely that the forfeiture is constitutionally excessive. (State of Utah v. Real Property at 633 East 640 North, Orem, Utah (Utah Supreme Ct. 2000) 994 P.2d 1254, 1259 [2000 UT 17].)  And in situations where no actual penalty is available for comparison, the court can look to the standard penalty which would normally be imposed for the offense . (One 1997 Ford Expedition Util. Vehicle, supra, 135 F. Supp. 2d 1142, 1147-1148.)

	With the exception of serious drug offenses and large criminal enterprises (see Hlth.& Sfty. Code §§11469-11495; Pen. Code §§186-186.8),  the state does not permit the forfeiture of vehicles in cases of first-time offenders. (See, e.g., Veh. Code §§14602.5, 14602.6 14602.7 and 23109.2 [impoundment only].)  It is only repeat offenders who face forfeiture (Veh. Code §14607.6 [forfeiture for second offense of driving on suspended or revoked license]) – and even then it is questionable whether forfeiture would survive Excessive Fines scrutiny. (See State v. Taylor (Tn. Supreme Ct.2002) 70 S.W.3d 717, 723 [court reduces fine imposed by jury following second conviction for driving on suspended license from $27,500 to $3,000; and notes that as reduced fine does not violate the Excessive Fines Clause]; Hawks v. Greene (Tn. Ct. of App. 2001) 2001 Tenn. App. LEXIS 917 [forfeiture for a first offense of driving on a suspended license violates the Excessive Fines Clause].)
	Against this backdrop of minimal culpability and limited penalties, OMC section 9.56.010 is grossly disproportional because it permits forfeiture based on a single act of soliciting prostitution. (One 1995 Toyota Pick-up Truck, supra, 718 A.2d 558.)^32  The penalty of forfeiture is far greater than that imposed by the state following a first time conviction, and in fact is far greater than the penalty imposed by the state for a third-time offense involving the use of an automobile. (Pen. Code §647, subd. (k)(2).) This disproportionality is heightened by the fact that Chapter 9.56 does not require a criminal conviction at all (see Galloway v. City of Albany, Mississippi (Miss. Supreme Ct. 1999) 735 So. 2d 407, 413-414, fn. 6 [in the absence of a criminal conviction it is questionable whether there is any “illegal activity” on which forfeiture may be based]; United States v. 6625 Zumirez Drive (C.D. Cal. 1994) 845 F. Supp. 725, 736 [“the actions of a claimant adjudged innocent are necessarily less serious than those of a claimant who has been found guilty”]), and that forfeiture applies to entirely innocent owners. (Bennis, supra, 516 U.S. 442, 471 (Stevens, J., joined by Souter and Breyer, JJ., diss.) [for an individual who merely let another use her car and had no knowledge of the offender’s criminal proclivities, “even a modest penalty is out of all proportion to her blameworthiness; and when the assessment is confiscation of the entire car, simply because an illicit act took place once in the driver's seat, the punishment is plainly excessive.”].)   

^32 
	Because Chapter 9.56 does not require the City Attorney to plead or prove, or the court or jury to expressly find true, any act beyond the commission of a single offense set forth in OMC section 9.56.090, any alleged prior criminal history of the offender cannot constitutionally be considered when evaluating the propriety of forfeiture under the Eighth Amendment. (See People v. Wims (1995) 10 Cal. 4th 293; Apprendi  v. New Jersey (2000) 530 U.S. 466 [147 L. Ed. 2d 435, 120 S. Ct. 2348]; People v. Kelii (1999) 21 Cal.4th 452; and see People v. Superior Court (Plascencia) (2002) 103 Cal. App. 4th 409, 424-433 [constitutional right to jury trial in forfeiture action includes the right to have the jury determine all facts bearing on the issue of forfeiture].)  As such, a facial challenge is appropriate because the circumstances of the offense and the offender are limited to those found on the face of OMC section 9.56.010.  In any event, appellants allege Chapter 9.56 is routinely applied to first time offenders. (Comp., ¶¶ 94-100, 104-108.)

	In a facial challenge, appellant cannot present evidence of the precise value of vehicles sought to be forfeited under Chapter 9.56 (cf. One 1995 Toyota Pick-up Truck, supra, 718 A.2d 558 [truck valued at $15,500.00]), but such vehicles are necessarily operational as they were used during the act of solicitation (OMC §9.56.010)  and thus have some monetary value. (Krimstock, supra, 306 F.3d at p. 61 [a vehicle is often a person’s most valuable asset]; and see United States v. One Parcel of Property at Shelly's Riverside Heights (M.D. Pa. 1994) 851 F. Supp. 633, 638 [even if the monetary value of the land and the cabin sought to be forfeited are not great, “they seem to be the only significant possessions (the claimant) has.”].) Moreover, the Excessive Fines analysis should take into consideration the intangible, subjective value of the property seized and the hardship of forfeiture on the owner, including the effect of the forfeiture on the owner’s family or financial condition. (Real Property at 633 East 640 North, supra, 994 P.2d 1254, 1259-60; United States v. 6625 Zumirez Drive (C.D. Cal. 1994) 845 F. Supp. 725, 734.) The private interest in an automobile “is substantial [because] [a] person's ability to make a living and his access to both the necessities and amenities of life may depend upon the availability of an automobile when needed.” (Stypmann, supra, 557 F.2d 1338, 1343-1344; accord Krimstock, supra, 306 F.3d 40, 61; Coleman, supra, 40 F.3d 255, 260-61.)
	The California Supreme Court has held that it constitutes “cruel and unusual punishment” to require a first time Penal Code section 647, subdivision (a)^33, offender to register as a sex offender under Penal Code section 290. (In re Reed (1983) 33 Cal.3d 914, 922-926.)  By similar reasoning, it is proper to find that as a matter of law, regardless of the monetary value of a particular vehicle, it is constitutionally impermissible under the Excessive Fines Clause to forfeit a vehicle based on a single act of soliciting prostitution; and thus OMC section 9.56.010 is facially unconstitutional.^34

^33 
	Which at that time declared that a person "[who] solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view" is guilty of disorderly conduct, a misdemeanor.

^34
	Two similarities between In re Reed, 33 Cal.3d 914, and the instant case deserve emphasis.  First, because Chapter 9.56 is applied only in conjunction with “sting” operations,  there is no “victim” in the traditional criminal sense. (Id., at p. 923 and fn. 9.)  Second, there are a myriad of far more serious sex-related offenses which may involve the use of a vehicle but for which forfeiture is not authorized, and the same is true for “[m]ore serious crimes not related to sex, such as robbery, burglary, or arson,” where “violence and victimization are more pronounced and recidivism is often proved.” (Id., at p. 925-926.)

	Additionally, on an “as-applied” basis, appellants have alleged facts establishing that the value of vehicles seized under Chapter 9.56 and the culpability of the owners are such that the Excessive Fines Clause is violated by forfeiture based on a single act of soliciting prostitution. (Comp., ¶¶ 25-28, 41, 86, 88-89, 94-100, 104-108.)^35 

^35
	See, e.g., Tenn. Atty. Gen. Opinion No. 02-055 (2002) 2002 Tenn. AG LEXIS 56 [concluding that a proposed bill providing for forfeiture of a vehicle following a second offense for soliciting prostitution would probably be unconstitutional as applied to cases where the vehicle is more valuable than the maximum penal fine of $500, the loss of the vehicle would cause hardship to the owner or his family, or the owner was not the person who engaged in the unlawful conduct].

	The same is true with respect to Chapter 9.56’s allowance of forfeiture based on a single act of acquiring, or attempting to acquire, narcotics of any kind and any amount. (OMC §9.56.010.)  Courts have routinely held that the possession or purchase of a small quantity of narcotics such as occurs under Chapter 9.56 (see Comp., ¶¶ 25-26) does not justify forfeiture of a vehicle within the parameters of the Excessive Fines Clause. (See Ex Parte Kelly (Ala. Supreme Ct. 1999) 766 So. 2d 837 [prohibiting forfeiture of a automobile where the driver and passengers were found in possession of 4 tablets of a controlled substance called “aminorex” and a bag containing 6.2 grams of marijuana]; City of Tampa Bay v. Acosta (Fla.App. 1994) 645 So. 2d 551 [driver purchased $20.00 worth of crack cocaine]; 1990 Chevrolet Blazer v. City of Tarpon Springs (Fla.App. 1996) 684 So. 2d 197) [driver found in possession of 27 grams of marijuana]; United States v. One Parcel of Property at Shelly's Riverside Heights, supra, 851 F. Supp. 633, 638 [real property worth at least $7,950, possession of 23 kilograms of marijuana];  (One (1) Charter Arms v. State (Miss. Supreme Ct. 1988) 721 So.2d 620 [possession of a single rock of cocaine];  Galloway v. City of Albany, Mississippi, supra,  (Miss. Supreme Ct. 1999) 735 So. 2d 407 [passenger sold small amount of prescription drugs]; State of Utah v. Real Property at 633 East 640 North, Orem, Utah, supra, 2000 UT 17; 994 P.2d 1254 [prohibiting forfeiture of a residence where the occupant had been found in possession of less than two pounds of marijuana for sale in an eighteen month span]; Weldon v. State (Ala. Civ. App. 1997) 718 So.2d 52, 53 [forfeiture of BMW resulting from possession of marijuana is constitutionally excessive, in part because the defendant had no previous convictions]; Dent v. State  (Ala. 1997) 714 So.2d 985, 987 [forfeiture of van under state drug laws excessive, in part because defendant lacked criminal record]; Williams v. State (Miss. 1998) 712 So.2d 620, 625 [forfeiture of automobile for possession of crack cocaine excessive, in part because defendant had no previous felony convictions related to controlled substances]; Commonwealth v. One (1) 1993 Pontiac Trans AM (Pa. Cmwlth. 2002) 809 A.2d 444, 445 [6.68 grams of marijuana; forfeiture of vehicle  grossly disproportionate to the gravity of the offense]; and see Comp., ¶¶ 25-28, 41, 86, 88-89, 94-100, 104-108 [generally describing the conduct giving rise to forfeiture and the value of the vehicles seized for purposes of forfeiture].)
 	The disproportional nature of forfeiture is especially clear in cases of the attempted purchase of less than one ounce of marijuana – which is an infraction carrying a maximum penalty of $50.00 (Hlth. & Sfty. Code §11357, subd. (b), and Pen. Code §664), for which vehicles are routinely seized for purposes of forfeiture under Chapter 9.56. (Comp., ¶¶ 25-26, 94-99.)  Similarly, disproportionality under Chapter 9.56 is further demonstrated by Penal Code sections 1001, et seq., 1210.1 and 3063.1, which make clear that in cases of first time narcotics offenders, rehabilitation, not punishment, is the rule in California.^36

^36
	With respect to actual or attempted acquisition of narcotics under OMC section 9.56.010, appellants concede there are theoretical situations in which the quantity or nature of drugs acquired, or attempted to be acquired, would warrant forfeiture within the bounds of the Excessive Fines Clause. As such, this aspect of OMC section 9.56.010 would normally be immune from a facial attack. (But see California Teachers Assn. v. State of California (1999) 20 Cal. 4th 327, 347, American Academy of Pediatrics v. Lungren (1997) 16 Cal. 4th 307, 342-348 (plur. opn. of George, C. J), and Kasler v. Lockyer (2000) 23 Cal. 4th 472, 501-502 [suggesting a facial attack tests the application of an ordinance in the “vast majority” or “generality” of the cases].) 

	A facial attack is nonetheless appropriate because it is impossible to conceive of a factual situation in which the quantity and nature of drugs would justify forfeiture under the Eighth Amendment Excessive Fines Clause without qualifying for forfeiture under the Uniform Controlled Substance Act, in which case state preemption would apply. (Sherwin-Williams Co. (1993) 4 Cal. 4th 893, 897, 902 [preemption applies where local ordinance duplicates state law]; cf. Horton, supra, 82 Cal.App.4th at p. 588,  fn. 10 [declining to decide whether preemption would apply if an offense qualified for forfeiture under state law but forfeiture was sought under Chapter 9.56].)  In other words, to the extent OMC section 9.56.010 is not preempted by state law because it addresses small time drug buyers and not sellers (Horton, supra, 82 Cal.App.4th 580), the penalty of forfeiture for a first time offense (see fn. 32, ante, p. 55) violates the Excessive Fines Clause.

	Accordingly, the court erred in sustaining the demurrer to the Third and Sixth Causes of Action.

CONCLUSION
	Based on the foregoing, the court should find that the First Amended Complaint states one or more valid causes of action, and reverse the judgment accordingly.
					Respectfully Submitted,
Date: _____				By:_________________
					      Mark T. Clausen,
					Attorney for Plaintiffs/Appellants