Wednesday, April 04, 2012

Standard-Examiner: Stewart's Newest Lawyer Files Another Motion Against Seizure - Updated

Added bonus: April 12 Law Enforcement Against Prohibition educational seminar

As a followup to our 3/30/12 WCF writeup, the Standard-Examiner reports this morning that Ogden 1/4/12 Shootout Defendant Matthew Stewart's civil attorney, Emily Swenson, has now filed a second Motion to Quash in Stewart's pending asset forfeiture civil case:
According to this morning's Tim Gurrister story, Attorney Swensen has expanded her allegations that service of process was defective under applicable Utah law:
Swenson’s new motion claims new irregularities in the serving of the forfeiture notice on Stewart. The first motion claimed the seizure notice was not served by the right person under the law and that proper paperwork was not included.
The latest motion claims the officer who served the notice was doubly disqualified from doing so because he was a strike force member, therefore a party in the case and not the proper person to be serving the notice. And it notes the papers missing initially were subsequently filed late.
Once again turning to the apparently applicable code section within the operative Utah Forfeiture Procedures Act (UFPC), we find this express language, which is quite specific as to who has the authority to serve papers in UFPC property forfeiture actions:
24-1-4. Civil Procedures.
...(3) (a) Within 60 days of any seizure, the prosecuting attorney shall file a complaint for forfeiture in the appropriate district court and serve a summons and notice of intent to seek forfeiture with a copy of the complaint upon all owners and interest holders known to the prosecuting attorney to have an interest in the property. Service shall be by one of the following methods:
(i) if the owner's or interest holder's name and current address are known, either by personal service by any person qualified to serve process, by a law enforcement officer, or by certified mail, return receipt requested, to that address...
On the surface, it would thus appear that even with the amended filing, Ms. Swenson's allegations may lack merit. The new filing does present an interesting legal issue, however. Inasmuch as the police officer who served the civil forfeiture papers was allegedly a member of the Weber-Morgan Narcotics Strike Force, an entity which would be a direct beneficiary of any net proceeds which would flow from a seizure and sale of Stewart's home, that WMNSF officer might be deemed by the court to be a real party in interest, (or an agent of a real property in interest) , which would arguably make him ineligible to serve such process under general provisions of Utah law, e.g., Utah Code Section 78B-8-302 Process servers, which provides, "(1) Complaints, summonses, and subpoenas may be served by any person 18 years of age or older at the time of service, and who is not a party to the action or a party's attorney." Yes, the argument is a bit of a stretch, but it'll be fascinating to see how 2d District Court Judge Decaria treats this issue once it's argued in court, wethinks.

As to the allegation that the supporting affidavits were filed late, odds are that the Weber County Attorney's office will successfully argue that such late filing should be excused by the court under general legal principles related to excusable neglect. You'd be amazed folks, about how often little screwups like this are "cured" under grounds of inadvertance/excusable neglect ("It's my secretary's fault, Your Honor") in courts all over the land.

Who knows however? If Judge Decaria takes an extra cautious approach to this property rights matter he may well rule that the government should just "man up," and serve the papers all over again. A Utah District Court Judge can do pretty much whatever he wants, after all.

Whatever happens in this matter, we'll be watching closely of course.

Added Bonus: As a side note we learn from one Matthew Stewart supporter this morning that Stewart's support group has scheduled an April 12 public event at the Weber County Main Library at 7:30 p.m., where Law Enforcement Against Prohibition panel speaker (and ex-L.A. cop) David Goddridge will conduct a seminar, "in an effort to educate the public, the media, and policy makers, to the failure of current drug policy by presenting a true picture of the history, causes and effects of drug abuse and the crimes related to drug prohibition; and, To restore the public's respect for law enforcement, which has been greatly diminished by its involvement in imposing drug prohibition."

This ought to be an interesting venue for those WCF readers interested in learning a little more about the disastrous forty-year old "war on drugs," and what some dedicated folks from the U.S. law enforcement community are trying to do about it.

Update 4/5/12 7:00 a.m.: We've obtained Ms. Swenson's opposition papers concerning the above matter, which we've uploaded to our storage site and hereby provide the links below:
Significantly, these papers reveal that the Weber Morgan Narcotics Strike Force (WMNSF) has been assisting in the prosecution of this matter in its own name, as an identifiable separate entity, thus strengthening Ms. Swenson's argument that the WMNSF is a proper party in this matter, and adding weight to the possible legal conclusion that the process server in this matter, an agent of WMNSF, was ineligible to serve the government's forfeiture papers under authority of the code sections cited above.


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Phoenix3555 said...

Don't be surprised if the location changes to a larger venue..

Thefavoritesister said...

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Phoenix3555 said...

Rudi, are you planning on being there April 12?

rudizink said...

 I won't be able to attend, due to a calender conflict with the Weber County GOP Convention

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