HomeMy WebLinkAbout12-05-2024 - Carner's Response to Citys motion to strike evidenceIN THE MATTER OF CODE 23-000293
RESPONSE TO MOTION TO STRIKE EVIDENCE
I. INTRODUCTION
The City’s motion to strike evidence submitted by Mr. Carner lacks merit and misapplies the relevant
legal standards under Washington State and U.S. law. Mr. Carner’s evidence is properly admissible,
foundationally sufficient, and relevant to the matter at hand. As such, the evidence should be
considered by the Hearing Examiner in its entirety.
II. ARGUMENT
A. The Evidence Provided by Mr. Carner is True, Accurate, and a Matter of Public
Knowledge
The evidence submitted by Mr. Carner, including the aerial photograph and witness statements,
meets the criteria of reliability and accuracy under Washington law. Specifically:
1. Aerial Photograph: Aerial photographs from publicly available sources such as
governmental databases (e.g., King County GIS, U.S. Geological Survey, Google Earth) are
generally accepted as accurate representations of property conditions on the date indicated,
unless contrary evidence is provided. Mr. Carner’s submission of the 2009 aerial photograph
is consistent with commonly available public records and should be presumed accurate
absent a specific challenge to its authenticity (RCW 5.44.010).
2. Witness Statements: The six witness statements, while unsworn, are admissible under
RCW 34.05.452(1), which allows evidence commonly relied upon by reasonably prudent
persons. Witnesses with personal knowledge of events may submit declarations or
statements even if not under oath, provided their statements are relevant and probative.
Moreover, these individuals’ observations about the property are verifiable facts and support
the material assertions made by Mr. Carner.
B. Foundation for the Evidence is Adequate
1. Witness Statements: The individuals who provided statements are presumed competent to
testify under Washington law (ER 601). While the City claims insufficient foundation, Mr.
Carner’s submission identifies the witnesses’ observations relevant to the case. The lack of
formal sworn affidavits does not render the evidence inadmissible; rather, it goes to weight,
which is within the discretion of the Hearing Examiner.
2. Aerial Photograph: The photograph’s origin, date, and relevance are apparent from the
submission. Such photographs, often generated by reputable mapping services, like Google
Earth are commonly used as evidence in administrative hearings and judicial proceedings.
The City’s speculative concerns about accuracy lack evidentiary support and are insufficient
to exclude the photograph.
C. The Evidence is Relevant and Material
Under RCW 34.05.452(1), evidence must be relevant, material, and reliable. The evidence provided
by Mr. Carner is directly relevant to the issue at hand, including the historical presence and use of a
recreational vehicle on the property in question. The photograph and witness statements corroborate
material facts central to the appeal, meeting the standard for admissibility.
D. The Evidence is Not Hearsay
The City’s hearsay objection under ER 802 is misplaced. Administrative hearings are not bound by
strict evidentiary rules but instead follow a more flexible standard (RCW 34.05.452(1)). Even if the
statements were considered hearsay, they fall under exceptions such as those for public records or
statements made with personal knowledge. The City’s reliance on ER 804 is irrelevant, as the rule
applies to unavailability, which is not at issue here.
E. The City’s Opportunity to Rebut Evidence Does Not Preclude Admission
The City’s assertion that it has had no opportunity to rebut the evidence is not grounds to strike it. The
Hearing Examiner may allow the City additional time to respond if necessary. The procedural fairness
principle ensures that both parties are given the opportunity to address the evidence without barring
its admission (RCW 34.05.449).
III. CONCLUSION
Mr. Carner’s evidence is true, accurate, relevant, and a matter of public knowledge. The City’s
objections based on foundation, relevance, and hearsay are without merit under applicable laws and
standards for administrative hearings. The Hearing Examiner should deny the City’s motion to strike
and give full consideration to the submitted evidence.
Respectfully submitted,
Kelly Carner
Date 12-05-2024