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Mark T. Clausen (Calif. SB# 196721)
Attorney at Law
10918 Rio Ruso Drive
Windsor, California 95492
Telephone: (707) 838-2215
Facsimile: (707) 575-3826
Email: MarkTClausen@AOL.com

Attorney for Plaintiff
Daniel Hernandez

SUPERIOR COURT OF THE STATE OF CALIFORNIA, 
COUNTY OF SACRAMENTO

[AN UNLIMITED CIVIL ACTION] 

DANIEL HERNANDEZ,					SUPPLEMENTAL 
								MEMORANDUM OF POINTS
								AUTHORITIES IN SUPPORT OF
	Plaintiff,						PLAINTIFF’S MOTION FOR
								SUMMARY ADJUDICATION OF
vs.								ISSUES				 
								
THE CITY OF SACRAMENTO,				Date: March 5, 2004
SAMUEL L. JACKSON, solely in				Time: 2:00 p.m.
his official capacity as Sacramento				Dept.: 53	
City Attorney,			

	Defendants.
____________________________________/

ARGUMENT
	Tucked away in Western Pacific Ocean, about 2,500 miles southwest of Hawaii just above the Equator, lies a grouping of 607 small islands known as the Federated States of Micronesia. (Exhibit A hereto.)   The islands are part of the former Trust Territory of the Pacific Islands created by the United Nations in 1947, over which the United States was trustee.  The Trust Territory later became the Federated States of Micronesia and following the establishment of National and State Constitutions and the creation of a judicial system, between 1979 and 1986 the United States entered upon a period of orderly transfer of governmental functions consistent with the terms of the UN Trusteeship Agreement.  The “Compact of Free Association,” giving the Federated States autonomy from the United States, was signed in October 1982 and became operative November 3, 1986.  On September 17, 1991, the Federated States of Micronesia (“FSM”) became a member of the United Nations. (Exhibit B hereto.)
	Visitors to the secluded islands can see traditional village dancing, take a hike to a secluded lake or waterfall, or dive beneath the sea to view coral laden shipwrecks. (Exhibit A.)  And if during the course of their visit their property is seized by the government for purposes of forfeiture, they are entitled to a prompt post-seizure probable cause hearing. (FSM v. Zhong Yuan Yu No. 621 (Pohnpel 1994) 6 FSM Intrm. 584, 588-590 [Exhibit C hereto]; Ishizawa v. Pohnpei (Ponpel 1985) 2 FSM Intrm 67, 75-77 [Exhibit D hereto].)  Thus, in addition to beautiful beaches, ocean views, tranquility and an effervescent innocence, the Federated States offer another attraction over the City of Sacramento: adherence to principles embodied in the Fourth Amendment and Due Process Clause of the United States Constitution.  
	As the Supreme Court of FSM explained in Zhong Yuan Yu, employing reasoning nearly identical to that advanced by plaintiff here:
In situations where an arrest is not made pursuant to an arrest warrant, however, the arrested individual nonetheless is entitled to a judicial determination as to whether there is probable cause to detain the accused. Like the process for obtaining an arrest warrant, the probable cause hearing is an informal, non adversarial proceeding in which the formal rules of evidence and the requirement of proof beyond a reasonable doubt do not apply. [fn. 5 (“Obviously, a preliminary hearing to determine whether there is probable cause to detain is only necessary if significant pre-trial restraints are placed on the defendant's liberty.”)^1

^1[footnoted added by plaintiff] This language is taken from Gerstein v. Pugh (1975) 420 U.S. 103 [43 L. Ed. 2d 54, 95 S. Ct. 854].

This Court has determined that article IV, section 5 [of the FSM constitution]^2 also requires that property seized pursuant to a civil forfeiture proceeding must be based on probable cause. (Ishizawa v. Pohnpei, 2 FSM Intrm. 67 (Pon. 1985).) A civil forfeiture proceeding, however, is not a criminal action, and such proceedings are not automatically subject to the procedural rules found in Title 12 of the FSM Code or upon this Court's Rules of Criminal Procedure. For example, post-seizure hearings are not subject to the twenty-four hour requirement set forth in 12 F.S.M.C. 218(5) [fn. 6].^3  It is equally true, however, that a forfeiture proceeding is not a typical civil action either. Rather, a forfeiture proceeding is a civil action that shares many similarities with criminal proceedings. Often, as is the case here, forfeiture is sought because the property was used in connection with the commission of a crime. Moreover, while not as serious as the detention of a person, the seizure and retention of valuable property nonetheless "constitute[s] a substantial intrusion upon the privacy of [the] individual whose . . . property is affected," and for which probable cause must be established. (Ishizawa, 2 FSM Intrm. at 75.)

^2[footnoted added by plaintiff] Which like the Fourth Amendment provides:

“The right of the people to be secure in their persons, houses, papers, and  other possessions against unreasonable search, seizure, or invasion of privacy may not be violated. A warrant may not issue except on probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized.”

^3 [footnoted added by plaintiff] The statutory 24 hour rule of the FSM is derived directly from the constitutional 48 hour rule of County of Riverside v. McLaughlin (1991) 500 U.S. 44 [114 L. Ed. 2d 49, 111 S. Ct. 1661]. (See also Pen. Code §825 [arraignment required within 48 hours of arrest].)

Thus, an individual whose property has been seized pursuant to a civil forfeiture proceeding is entitled to a [“prompt” post-seizure] hearing in order to determine whether there is probable cause to seize and detain that property. (Ishizawa, 2 FSM Intrm. at 77.)

	In turn, the underlying decision in Ishizawa, supra, 2 FSM Intrm 67, 75-77, reasons:
[W]here, as here, the seizure is for forfeiture rather than evidentiary purposes, the constitutional prohibitions against taking property without due process come into play. FSM Const. art. IV, §§ 3. This Court has not previously considered the impact of this Constitution's Due Process Clause upon seizures of property but we have recognized that the Clause is drawn from the United States Constitution and that we may look to decisions under that Constitution for guidance in determining the meaning of this Due Process Clause. Alaphonso v. FSM, 1 FSM Intrm. 209 (App. 1982). (Bold added.)

Under United States decisions, it is normally required that a hearing be held prior to the seizure of property. Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972). In "extraordinary situations" a seizure may take place prior to hearing. Even then, the United States Constitution has been held to require that the owner be afforded a prompt post-seizure hearing at which the person seizing the property must at least make a showing of probable cause. Stypmann v. City & County of San Francisco , 557 F.2d 1338, 1344 n.20 (9th Cir. 1977).^4

^4[footnote added by plaintiff] Stypmann is, of course, a case relied on by this court in its September 17, 2003, order overruling the City’s demurrer to the Second Cause of Action.

	In a footnote, the court further states:
In light of the conclusion that the seizure must be set aside on other grounds it is not necessary here to determine whether the constitutional obligation to provide a prompt post-seizure hearing was violated. Suffice it to say that the failure of Pohnpei officials to seek a judicial determination for a full three days after seizure of a vessel on this island is unexplained and troubling. Officials must have probable cause when they seize the vessel and they should be prepared immediately to demonstrate that fact. Unreasonable delay in providing a post-seizure hearing may require that an otherwise valid seizure be set aside. (Ishizawa, supra, 2 FSM Intrm 67, 77 at fn. 9.)

Searches and seizures both constitute a substantial intrusion upon the privacy of an individual whose person or property is affected, but a search is typically of shorter duration. Beyond that, even a temporary seizure is itself a significant taking of property, depriving the owner of possession, an important attribute of property.

Seizures often impose onerous burdens upon those otherwise entitled to possession. Seizure of a fishing vessel has especially profound implications. A valuable, potentially productive asset is rendered useless to the owners, depriving them of potential profits as well as their use of the vessel.

Moreover, seizure of a vessel typically will have the effect of confining the crew, which may be obliged to remain in the area until legal proceedings are concluded. Aside from substantial personal inconvenience to the crew, this causes added expense to the owners or whoever is responsible for providing the necessities of life and any compensation to the crew while the vessel is seized. In the alternative, someone would have to provide air fare or arrange other transportation to permit the crew to proceed to their homes. ...” (Ishizawa, supra, 2 FSM Intrm at 75.)

	The analogy to vehicles is easily made: “The deprivation of real or personal property involves substantial due process interests.”(Krimstock v. Kelly (2^nd Cir. 2002) 306 F.3d 40, 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 v. Michigan (1996) 516 U.S. 442, 473 [116 S. Ct. 994, 134 L.Ed. 2d 68] (Kennedy, J., diss.) [an automobile “is a practical necessity in modern life for so many people”]; Krimstock, supra, 306 F.3d at p. 61.) The seizure authority under Chapter 8.14 extends not only to cars registered in the City of Sacramento, but to any found there; it also encompasses commercial as well as noncommercial vehicles.  The seizure of a vehicle may hinder travel from places within the City to places outside, may prevent owners from returning to their residences outside the City, or preclude travel to destinations which are deemed common-place with the advent of the motor vehicle, such as visits to relatives, job-sites, doctors and friends – even preventing a grandfather from driving his granddaughter to school. (Krimstock, supra, 306 F.3d at pp. 61-62.)
	In sum, the City of Sacramento would be wise to consider the wisdom of the former pupil, who has now become the teacher – adapting that wisdom, of course, to the seizure of vehicles by a local municipality with less global aspirations but an equal obligation to the “community of nations”:
Vessels seized will typically be flag carriers of another nation. Unlike searches, seizures will most assuredly come to the attention of these other nations. Unfair seizures may not only draw the wrath of the other nation most immediately involved but may jeopardize the efforts of the Federated States of Micronesia to take its place as a responsible member of the community of nations.  (Ishizawa, supra, 2 FSM Intrm at 75.)

		CONCLUSION
	Based on the foregoing, the Court should grant plaintiff’s motion for summary adjudication and enter judgment in his favor on the Second Cause of Action.^5

^5Plaintiff notes that his original supporting brief is 10 pages so with the additional 5 pages utilized in this supplement, plaintiff is still well within the 20 page limit for summary adjudication motions. (CRC R. 313.)

 					Respectfully Submitted,
Date: ______				By: ___________________
					       Mark T. Clausen,
					Attorney for Plaintiff Hernandez

PROOF OF SERVICE
	I, the undersigned, do hereby declare:
	I am over the age of 18 and not a party to the above-entitled action.  My business address is 10918 Rio Ruso Drive, Windsor, California, 95492.  On the date indicated below true copies of the attached documents were placed in a sealed envelope, postage prepaid, and deposited in the United States Mail, address as follows:
H. Michon Johnson, Deputy City Attorney
Office of the Sacramento City Attorney
980 9^th Street, 10^th Floor
Sacramento, California 95814	

	I declare that the foregoing is true and correct under penalty of perjury of the laws of the State of California.  So declared this _____ day of _____________, 2004, at Santa Rosa, California.
____________________________
Mark Clausen

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